UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) March 30, 2000
TRIARC COMPANIES, INC.
--------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 1-2207 38-0471180
----------------- -------------- --------------
(State or other (Commission (I.R.S. Employer
jurisdiction of File No.) Identification No.)
incorporation of
organization)
280 Park Avenue
New York, NY 10017
-------------------------------------------- -----------------
(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code: (212) 451-3000
-------------------------------------------- -----------------
(Former name or former address, (Zip Code)
if changed since last report)
<PAGE>
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits
4.1 - Supplemental Indenture No. 3, dated as of December 16, 1999 among
Triarc Consumer Products Group, LLC ("TCPG"), Triarc Beverage
Holdings Corp.("TBHC"), MPAS Holdings, Inc., Millrose L.P. and
The Bank of New York, as Trustee.
4.2 - Supplemental Indenture No. 4, dated as of January 2, 2000 among
TCPG, TBHC, Snapple Distributors of Long Island, Inc. and The
Bank of New York, as Trustee.
10.1 - Employment Agreement dated as of May 1, 1999 between Triarc and
Nelson Peltz.
10.2 - Employment Agreement dated as of May 1, 1999 between Triarc and
Peter W. May.
10.3 - Employment Agreement dated as of February 24, 2000 between
Triarc and John L. Barnes, Jr.
10.4 - Employment Agreement dated as of February 24, 2000 between Triarc
and Eric D.Kogan.
10.5 - Employment Agreement dated as of February 24, 2000 between Triarc
and Brian L. Schorr.
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on behalf by the
undersigned hereunto duly authorized.
TRIARC COMPANIES, INC.
By: BRIAN L. SCHORR
--------------------------
Brian L. Schorr
Executive Vice President
and General Counsel
Dated: March 30, 2000
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description Page No.
- --------- ----------- --------
4.1 - Supplemental Indenture No. 3, dated as of December 16, 1999
among Triarc Consumer Products Group, LLC ("TCPG"),
Triarc Beverage Holdings Corp. ("TBHC"), MPAS Holdings,
Inc., Millrose L.P. and The Bank of New York, as Trustee.
4.2 - Supplemental Indenture No. 4, dated as of January 2, 2000
among TCPG, TBHC, Snapple Distributors of Long Island, Inc.
and The Bank of New York, as Trustee.
10.1 - Employment Agreement dated as of May 1, 1999
between Triarc and Nelson Peltz.
10.2 - Employment Agreement dated as of May 1, 1999
between Triarc and Peter W. May.
10.3 - Employment Agreement dated as of February 24, 2000
between Triarc and John L. Barnes, Jr.
10.4 - Employment Agreement dated as of February 24, 2000
between Triarc and Eric D. Kogan.
10.5 - Employment Agreement dated as of February 24, 2000
between Triarc and Brian L. Schorr.
<PAGE>
Exhibit 4.1
SUPPLEMENTAL INDENTURE NO. 3
dated as of December 16, 1999
among
TRIARC CONSUMER PRODUCTS GROUP, LLC,
TRIARC BEVERAGE HOLDINGS CORP.,
as Issuers
MPAS HOLDINGS, INC.,
MILLROSE, L.P.
and
THE BANK OF NEW YORK,
as Trustee
--------------------------
10 1/4% Senior Subordinated Notes due 2009
<PAGE>
THIS SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated
as of December 16, 1999, among TRIARC CONSUMER PRODUCTS GROUP, LLC, a Delaware
limited liability company (the "Company"), and TRIARC BEVERAGE HOLDINGS CORP., a
Delaware corporation ("Triarc Beverage," and together with the Company, the
"Issuers"), MPAS HOLDINGS, INC., a Delaware corporation ("MPAS"), MILLROSE,
L.P., a Delaware limited partnership ("Millrose" and, together with MPAS, the
"Undersigned"), and THE BANK OF NEW YORK, as trustee (the "Trustee").
RECITALS
WHEREAS, the Issuers, the Subsidiary Guarantors party thereto and
the Trustee entered into the Indenture, dated as of February 25, 1999 (as
amended, supplemented or otherwise modified from time to time, the "Indenture"),
relating to the Issuers' 10 1/4% Senior Subordinated Notes due 2009 (the
"Notes");
WHEREAS, as a condition to the Trustee entering into the Indenture
and the purchase of the Notes by the Holders, the Issuers agreed pursuant to
Section 4.18 of the Indenture to cause any newly acquired or created Domestic
Restricted Subsidiaries to provide Subsidiary Guarantees.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained and intending to be legally bound, the parties hereto
hereby agree as follows:
Section 1. Capitalized terms used herein and not otherwise defined
herein are used as defined in the Indenture.
Section 2. The Undersigned, by their execution of this Supplemental
Indenture, agree to be Subsidiary Guarantors under the Indenture and to be bound
by the terms of the Indenture applicable to Subsidiary Guarantors, including,
but not limited to, Article 13 thereof.
Section 3. This Supplemental Indenture shall be governed by and
construed in accordance with the internal laws of the State of New York.
Section 4. This Supplemental Indenture may be signed in various
counterparts which together shall constitute one and the same instrument.
Section 5. This Supplemental Indenture is an amendment supplemental
to the Indenture and said Indenture and this Supplemental Indenture shall
henceforth be read together.
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed and delivered
this Supplemental Indenture or have caused this Supplemental Indenture to be
duly executed on their respective behalf by their respective officers thereunder
duly authorized, as of the day and year first above written.
TRIARC CONSUMER PRODUCTS
GROUP, LLC, as Issuer
By: STUART I. ROSEN
---------------------------------
Name: Stuart I. Rosen
Title: Vice President
TRIARC BEVERAGE HOLDINGS CORP.,
as Issuer
By: STUART I. ROSEN
---------------------------------
Name: Stuart I. Rosen
Title: Vice President
MPAS HOLDINGS, INC.,
as Guarantor
By: STUART I. ROSEN
---------------------------------
Name: Stuart I. Rosen
Title: Vice President
MILLROSE, L.P.,
as Guarantor
By:MILLROSE DISTRIBUTORS, INC.,
its General Partner
By: STUART I. ROSEN
---------------------------------
Name: Stuart I. Rosen
Title: Vice President
THE BANK OF NEW YORK, as Trustee
By: MARIE E. TRIMBOLI
---------------------------------
Name: Marie E. Trimboli
Title: Assistant Treasurer
,
<PAGE>
Exhibit 4.2
SUPPLEMENTAL INDENTURE NO. 4
dated as of January 2, 2000
among
TRIARC CONSUMER PRODUCTS GROUP, LLC,
TRIARC BEVERAGE HOLDINGS CORP.,
as Issuers
SNAPPLE DISTRIBUTORS
OF LONG ISLAND, INC.
and
THE BANK OF NEW YORK,
as Trustee
--------------------------
10 1/4% Senior Subordinated Notes due 2009
<PAGE>
THIS SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated
as of January 2, 2000, among TRIARC CONSUMER PRODUCTS GROUP, LLC, a Delaware
limited liability company (the "Company"), and TRIARC BEVERAGE HOLDINGS CORP., a
Delaware corporation ("Triarc Beverage," and together with the Company, the
"Issuers"), SNAPPLE DISTRIBUTORS OF LONG ISLAND, INC., a New York corporation
("Snapple Long Island") and THE BANK OF NEW YORK, as trustee (the "Trustee").
RECITALS
WHEREAS, the Issuers, the Subsidiary Guarantors party thereto and
the Trustee entered into the Indenture, dated as of February 25, 1999 (as
amended, supplemented or otherwise modified from time to time, the "Indenture"),
relating to the Issuers' 10 1/4% Senior Subordinated Notes due 2009 (the
"Notes");
WHEREAS, as a condition to the Trustee entering into the Indenture
and the purchase of the Notes by the Holders, the Issuers agreed pursuant to
Section 4.18 of the Indenture to cause any newly acquired or created Domestic
Restricted Subsidiaries to provide Subsidiary Guarantees.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained and intending to be legally bound, the parties hereto
hereby agree as follows:
Section 1. Capitalized terms used herein and not otherwise defined
herein are used as defined in the Indenture.
Section 2. Snapple Long Island, by its execution of this
Supplemental Indenture, agrees to be a Subsidiary Guarantor under the Indenture
and to be bound by the terms of the Indenture applicable to Subsidiary
Guarantors, including, but not limited to, Article 13 thereof.
Section 3. This Supplemental Indenture shall be governed by and
construed in accordance with the internal laws of the State of New York.
Section 4. This Supplemental Indenture may be signed in various
counterparts which together shall constitute one and the same instrument.
Section 5. This Supplemental Indenture is an amendment supplemental
to the Indenture and said Indenture and this Supplemental Indenture shall
henceforth be read together.
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed and delivered
this Supplemental Indenture or have caused this Supplemental Indenture to be
duly executed on their respective behalf by their respective officers thereunder
duly authorized, as of the day and year first above written.
TRIARC CONSUMER PRODUCTS
GROUP, LLC, as Issuer
By: STUART I. ROSEN
--------------------------------------
Name: Stuart I. Rosen
Title: Vice President
TRIARC BEVERAGE HOLDINGS CORP.,
as Issuer
By: STUART I. ROSEN
--------------------------------------
Name: Stuart I. Rosen
Title: Vice President
SNAPPLE DISTRIBUTORS OF LONG
ISLAND, INC., as Guarantor
By: STUART I. ROSEN
--------------------------------------
Name: Stuart I. Rosen
Title: Vice President
THE BANK OF NEW YORK, as Trustee
By: MARIE E. TRIMBOLI
--------------------------------------
Name: Marie E. Trimboli
Title: Assistant Treasurer
<PAGE>
Exhibit 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is made as of May 1, 1999 (the "Effective
Date"), by and between TRIARC COMPANIES, INC., a Delaware corporation (the
"Corporation"), and Nelson Peltz (the "Executive").
The Corporation, on behalf of itself and its shareholders, wishes to
continue to retain the Executive as an integral part of the management of the
Corporation.
IT IS, THEREFORE, AGREED:
1. Term of Agreement. This Agreement shall be effective as of the
Effective Date and, subject to Section 6, expire on April 30, 2004 (the
"Employment Period"); provided that the Employment Period shall automatically be
extended for successive one-year periods on May 1 of each year unless, not later
than 180 days preceding the date of any such extension, either party gives the
other party written notice (in accordance with Section 12(b)) of such party's
intention not to further extend the Employment Period.
2. Change of Control. For the purpose of this Agreement, a
"Change of Control" shall be deemed to have taken place if:
A. Individuals who, on the date hereof, constitute the Board
of Directors (the "Board") of the Corporation (the
"Incumbent Directors") cease for any reason to constitute
at least a majority of the Board, provided that any person
becoming a director subsequent to the date hereof, whose
election or nomination for election was approved by a
vote of at least two-thirds of the Incumbent Directors then
on the Board (either by a specific vote or by approval of
the proxy statement of the Corporation in which such
person is named as a nominee for director, without written
objection to such nomination) shall be an Incumbent
Director; provided, however, that no individual initially
elected or nominated as a director of the Corporation as a
result of an actual or threatened election contest with
respect to directors or as a result of any other actual or
threatened solicitation of proxies or consents by or on
behalf of any person other than the Board shall be deemed
to be an Incumbent Director;
<PAGE>
B. Any "Person" (as such term is defined in Section 3(a)(9)
of the Securities Exchange Act of 1934 (the "Exchange
Act") and as used in Sections 13(d)(3) and 14(d)(2) of the
Exchange Act) is or becomes a "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Corporation representing
50% or more of the combined voting power of the
Corporation's then outstanding securities eligible to vote
for the election of the Board (the "Voting Securities");
provided, however, that the event described in this
paragraph B. shall not be deemed to be a Change in
Control by virtue of any of the following acquisitions: (i)
by the Corporation or any subsidiary of the Corporation in
which the Corporation owns more than 50% of the
combined voting power of such entity (a "Subsidiary"),
(ii) by any employee benefit plan (or related trust)
sponsored or maintained by the Corporation or any
Subsidiary, (iii) by any underwriter temporarily holding
the Corporation's Voting Securities pursuant to a public
offering of such Voting Securities, (iv) pursuant to a Non-
Qualifying Transaction (as defined in paragraph C
immediately below), (v) pursuant to any acquisition by
Executive or by any Person which is an "affiliate" (within
the meaning of 17 C.F.R.ss.230.405) of Executive, or (vi)
pursuant to any acquisition by any Person as to which
Executive and Peter May, acting as a "group" (within the
meaning of Section 14(d)(2) of the Exchange Act), are
affiliates (an "Excluded Person");
C. The consummation of a merger, consolidation, statutory
share exchange or similar form of corporate transaction
involving the Corporation or any of its Subsidiaries that
requires the approval of the Corporation's stockholders,
whether for such transaction or the issuance of securities
in the transaction (a "Business Combination"), unless
immediately following such Business Combination: (i)
more than 50% of the total voting power of (A) the
corporation resulting from such Business Combination
(the "Surviving Corporation"), or (B) if applicable, the
ultimate parent corporation that directly or indirectly has
beneficial ownership of 100% of the voting securities
eligible to elect directors of the Surviving Corporation
(the "Parent Corporation"), is represented by the
Corporation's Voting Securities that were outstanding
immediately prior to such Business Combination (or, if
<PAGE>
applicable, is represented by shares into which the
Corporation's Voting Securities were converted pursuant to
such Business Combination), and such voting power among the
holders thereof is in substantially the same proportion as the
voting power of the Corporation's Voting Securities among the
holders thereof immediately prior to the Business Combination,
(ii) no Person (other than (A) any employee benefit plan (or
related trust) sponsored or maintained by the Surviving
Corporation or the Parent Corporation or (B) an Excluded
Person) is or becomes the beneficial owner, directly or
indirectly, of 50% or more of the total voting power of the
outstanding voting securities eligible to elect directors of
the Parent Corporation (or, if there is no Parent Corporation,
the Surviving Corporation) and (iii) at least a majority of
the members of the board of directors of the Parent
Corporation (or, if there is no Parent Corporation, the
Surviving Corporation) following the consummation of the
Business Combination were Incumbent Directors at the time of
the Board's approval of the execution of the initial agreement
providing for such Business Combination (any Business
Combination which satisfies all of the criteria specified in
(i), (ii) and (iii) above shall be deemed to be a
"Non-Qualifying Transaction");
D. A sale of all or substantially all of the Corporation's
assets, other than to an Excluded Person;
E. The stockholders of the Corporation approve a plan of
complete liquidation or dissolution of the Corporation; or
F. Such other events as the Board may designate.
Notwithstanding the foregoing, a Change in Control of the Company shall
not be deemed to occur solely because any person acquires beneficial ownership
of more than 50% of the Corporation's Voting Securities as a result of the
acquisition of the Corporation's Voting Securities by the Corporation which
reduces the number of the Corporation's Voting Securities outstanding; provided,
that if after such acquisition by the Corporation such person becomes the
beneficial owner of additional Corporation Voting Securities that increases the
percentage of outstanding Corporation Voting Securities beneficially owned by
such person, a Change in Control of the Corporation shall then occur.
3. Employment Period. The Corporation hereby agrees to continue
Executive in its employ for the Employment Period.
<PAGE>
4. Position and Duties.
A. As of the date hereof, Executive is employed as Chairman
and Chief Executive Officer of the Corporation, and as
such Executive is responsible for oversight and
management of all operations and activities of the
Corporation. Executive shall report to the Board. During
the Employment Period, Executive's position (including
status, offices, titles and reporting requirements),
authority, duties and responsibilities shall be consistent
with those of the Chairman and Chief Executive Officer of
a publicly traded corporation. Executive's services shall
be performed primarily at the executive offices of the
Corporation located in New York City, subject to
reasonable travel requirements.
B. Excluding periods of vacation, sick leave and disability to
which Executive is entitled, Executive agrees to devote
reasonable attention and time during normal business
hours to the business and affairs of the Corporation and,
to the extent necessary to discharge the responsibilities
assigned to Executive hereunder, to use Executive's
reasonable best efforts to perform faithfully and efficiently
such responsibilities. Executive may (i) serve on
corporate, civic, educational, philanthropic or charitable
boards or committees, (ii) deliver lectures, fulfill speaking
engagements or teach at educational institutions and (iii)
manage personal investments, so long as such activities do
not significantly interfere with the performance of
Executive's responsibilities hereunder. It is expressly
understood and agreed that to the extent that any such
activities have been conducted by Executive prior to a
Change in Control, the continued conduct of such
activities (or the conduct of activities similar in nature and
scope thereto) subsequent to the Change in Control shall
not thereafter be deemed to interfere with the performance
of Executive's responsibilities to the Corporation.
<PAGE>
5. Compensation.
A. Base Salary. During the Employment Period, as
consideration for services rendered, the Corporation shall
pay to Executive a base salary at an annual rate at equal to
$1,400,000 for each year of the Employment Period, as
adjusted as described in the following sentence ("Base
Salary"), payable in accordance with the regular pay
policy of the Corporation. During the Employment
Period, Base Salary may be increased, but not decreased,
at the discretion of the Board or the Compensation
Committee thereof. Any increase in Base Salary shall not
serve to limit or reduce any other obligation to Executive
under this Agreement. Executive's Base Salary may not
be reduced after any such increase.
B. Bonus and Incentive Programs. Executive shall (without
duplication) receive an annual bonus in respect of each
fiscal year of the Corporation (a "Fiscal Year") ending
during the Employment Period, at least equal to the bonus
amount actually earned by Executive for such fiscal year
under the Corporation's 1999 Executive Bonus Plan, as it
may hereinafter be amended, modified or superseded or
supplemented by another bonus plan sponsored by the
Corporation or any affiliated company; provided that the
Board (including the Compensation Committee thereof)
may award Executive additional bonus amounts in its
discretion (the aggregate of such bonus amounts being
referred to hereunder as the "Bonus"). In addition to the
Base Salary and Bonus payable as hereinabove provided,
Executive shall be entitled to participate during the
Employment Period in all incentive programs (whether
cash or equity based, or otherwise), savings, pension,
profit sharing and retirement plans and programs
applicable to other key executives of the Corporation. In
no event shall such plans and programs, in the aggregate,
provide Executive following a Change in Control with
compensation, benefits and reward opportunities less
favorable than the most favorable of those provided by the
Corporation and its subsidiaries for Executive under such
plans and programs as in effect at any time during the
ninety-day period immediately preceding the Change in
Control or, if more favorable to Executive, as provided at
any time thereafter with respect to any other key
executive.
<PAGE>
C. Welfare Benefit Plans. During the Employment Period,
Executive and/or Executive's family, as the case may be,
shall be eligible for participation in and shall receive all
benefits under each welfare benefit plan of the
Corporation, including, without limitation, all medical,
prescription, dental, disability, salary continuance, life,
accidental death and travel accident insurance plan and
programs of the Corporation and its affiliated companies.
In no event shall such plans and programs, in the
aggregate, provide Executive following a Change in
Control with benefits less favorable than the most
favorable of those provided by the Corporation and its
affiliated companies for Executive under such plans and
programs as in effect at any time during the ninety-day
period immediately preceding the Change in Control or, if
more favorable to Executive, as provided at any time
thereafter with respect to any other key executive.
D. Expenses. During the Employment Period, Executive
shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by Executive in the
performance of his duties hereunder, subject to the
submission of such written documentation as the
Corporation may reasonably require in accordance with its
standard expense reimbursement practices and policies.
E. Office and Support Staff. During the Employment Period,
Executive shall be entitled to an office and secretarial and
other assistance consistent with his position. For five
years following a Change in Control, Executive shall be
entitled to an office or offices of a size and with
furnishings and other appointments, and to secretarial and
other assistance, at least equal to those provided to
Executive at any time during the ninety-day period
immediately preceding the Change in Control, or, if more
favorable to Executive, as provided at any time thereafter
with respect to any other key executive.
F. Vacation. During the Employment Period, Executive
shall be entitled to six weeks per year of paid vacation.
<PAGE>
G. Perquisites. During the Employment Period, Executive
shall be entitled to (i) be provided a driver of Executive's
choice, at the Corporation's cost, (ii) have a new automobile
of Executive's choice provided to him by the Corporation at
the Corporation's cost (and to have such automobile
replaced with a new one once it is three years old), and be
provided reimbursement for expenses incurred by Executive
in maintaining such automobile, including parking, gasoline,
insurance and maintenance, (iii) reimbursement for tax,
estate, financial planning and accounting services from
entities or individuals selected by Executive, up to a
maximum of $50,000 per year, and (iv) the use of aircraft
owned, rented or leased by the Corporation. The
Corporation shall report the taxable portion of the above in
accordance with applicable rules and regulations of the
Internal Revenue Service. The Corporation acknowledges
that it is making available the use of Corporation aircraft
pursuant to clause (iv) above primarily to ensure the safety
and security of Executive for the benefit of the Corporation,
and the Corporation encourages Executive to use such
aircraft when he travels, irrespective of whether such travel
is primarily for personal or business purposes.
H. Life Insurance. The Executive will cooperate in assisting the
Corporation in obtaining a key man life insurance policy on
the life of Executive, the beneficiary of which shall be named
by the Corporation, including completing all necessary
application materials and submitting to one or more physical
examinations with a physician of the Corporation's choice.
6. Termination. This Agreement shall terminate under the following
circumstances:
A. Death or Disability. This Agreement and the Employment
Period shall terminate automatically upon Executive's death.
The Corporation may terminate this Agreement, after having
established Executive's Disability (pursuant to the definition
of "Disability" set forth below), by giving to Executive
written notice of its intention to terminate Executive's
employment. In such a case, Executive's employment with
the Corporation shall terminate effective on the 180th day
after receipt of such notice (the "Disability Effective
Date"), provided that, within 180 days after such receipt,
Executive shall not have returned to full performance of
Executive's
<PAGE>
duties. For purposes of this Agreement, "Disability" means
personal injury, illness or other cause which, after the
expiration of not less than 180 days after its commencement,
renders Executive unable to perform his duties with
substantially the same level of quality as immediately prior
to such incident and such disability is determined to be total
and permanent by a physician selected by the Corporation or
its insurers and acceptable to Executive or Executive's legal
representative (such agreement as to acceptability not to be
withheld unreasonably).
B. With or Without Cause. The Corporation may terminate
Executive's employment with or without "Cause." The
Employment Period shall immediately end upon a
termination by the Corporation with Cause. For purposes of
this Agreement, "Cause" means (i) the willful and continued
failure of Executive to perform substantially his duties with
the Corporation (other than any such failure resulting from
Executive's incapacity due to physical or mental illness or
any such failure subsequent to Executive being delivered a
Notice of Termination without Cause by the Corporation or
delivering a Notice of Termination for Good Reason to the
Corporation) after a written demand for substantial
performance is delivered to Executive by the Board which
specifically identifies the manner in which the Board
believes that Executive has not substantially performed
Executive's duties and Executive has failed to cure such
failure to the reasonable satisfaction of the Board, (ii) the
willful engaging by Executive in gross misconduct which
results in substantial damage to the Corporation or its
affiliates, or (iii) Executive's conviction (by a court of
competent jurisdiction, not subject to further appeal) of, or
pleading guilty to, a felony. For purpose of this paragraph
B, no act or failure to act by Executive shall be considered
"willful" unless done or omitted to be done by Executive in
bad faith and without reasonable belief that Executive's
action or omission was in the best interests of the
Corporation or its affiliates. Any act, or failure to act,
based upon authority given pursuant to a resolution duly
adopted by the Board or based upon the advice of counsel
for the Corporation shall be conclusively presumed to be
done, or omitted to be done, by Executive in good faith and
in the best interests of the Corporation. Cause shall not
exist unless and until the Corporation has delivered to
Executive, along with the Notice of Termination for Cause,
<PAGE>
a copy of a resolution duly adopted by three-quarters (3/4) of
the entire Board (excluding Executive if Executive is a Board
member) at a meeting of the Board called and held for such
purpose (after reasonable notice to Executive and an
opportunity for Executive, together with counsel, to be heard
before the Board), finding that in the good faith opinion of
the Board an event set forth in clauses (i) - (iii) above has
occurred and specifying the particulars thereof in detail. The
Board must notify Executive of any event constituting Cause
within ninety (90) days following the Board's knowledge of its
existence or such event shall not constitute Cause under this
Agreement.
C. With or Without Good Reason. Executive's employment
may be terminated by Executive with or without Good
Reason. The Employment Period shall immediately end
upon a termination by Executive without Good Reason.
For purposes of this Agreement, "Good Reason" means:
(i) (a) any change in the duties or responsibilities
(including reporting responsibilities) of Executive
that is inconsistent in any material and adverse
respect with Executive's position(s), duties,
responsibilities or status with the Corporation
immediately prior to the Effective Date (including
any material and adverse diminution of such duties
or responsibilities); provided, however, that Good
Reason shall not be deemed to occur upon a change
in duties or responsibilities (other than reporting
responsibilities) that is solely and directly a result
of the Corporation no longer being a publicly traded
entity and does not involve any other event set forth
in this paragraph C or (b) a material and adverse
change in Executive's titles or offices (including his
position as President and Chief Operating Officer)
with the Corporation;
(ii) any failure by the Corporation to comply with any of
the provisions of Section 5 of this Agreement;
<PAGE>
(iii) the Corporation requiring Executive to be based at any
office or location other than that described in Section
4.A. hereof, or requiring Executive to travel in the
performance of his duties significantly more extensively
than the customary travel requirements of Executive as
of the Effective Date;
(iv) any purported termination by the Corporation of
Executive's employment otherwise than as permitted by
this Agreement, it being understood that any such
purported termination shall not be effective for any
purpose of this Agreement; or
(v) any failure by the Corporation to comply with and
satisfy Section 11.C of this Agreement by causing any
successor to the Corporation to expressly assume and
agree to perform this Agreement with Executive, to the
full extent set forth in said Section 11.C;
provided that a termination by Executive with Good Reason shall be effective
only if, within 30 days following the delivery of a Notice of Termination for
Good Reason by Executive to the Corporation, the Corporation has failed to cure
the circumstances giving rise to Good Reason to the reasonable satisfaction of
Executive. For purposes of this Section 6.C, a good faith determination made by
Executive that a "Good Reason" for termination has occurred, and has not been
adequately cured, shall be conclusive and binding. In addition to the above, any
termination by Executive for any reason on or after a Change of Control shall be
deemed to be a termination with Good Reason.
D. Expiration of the Employment Period. This Agreement
shall terminate upon the expiration of the Employment
Period due to the Corporation's giving to Executive a
written notice of intention not to extend the Employment
Period in accordance with Section 1.
E. Notice of Termination. Any termination by the Corporation
with or without Cause or by Executive with or without Good
Reason shall be communicated by Notice of Termination to
the other party hereto given in accordance with Section 12.B
of this Agreement. For purposes of this Agreement, a
"Notice of Termination" means a written notice which (i)
indicates the specific termination provision in this Agreement
Agreement relied upon, (ii) sets forth in reasonable detail
facts and circumstances claimed to provide a basis for
termination of Executive's employment under the provision
<PAGE>
so indicated and (iii) if the termination date is other than
the date of receipt of such notice specifies the proposed
termination date.
7. Obligations of the Corporation Upon Termination.
A. Death. If Executive's employment is terminated by reason
of Executive's death, the Corporation shall:
a. pay Executive's estate, in a lump sum in cash within
30 days after the date of death, the amounts
described in clauses a and d of Section 7.D.;
b. pay Executive's estate the amounts described in
clauses b and c of Section 7.D. at the time or times
determined by the Corporation, but in no event less
rapidly than five substantially equal annual
installments beginning no later than 30 days after the
date of death;
c. pay Executive's estate, in a lump sum in cash at the
time Executive would have been entitled to receive his
Bonus for the Fiscal Year in which his death occurs, a
pro-rata Bonus for such Fiscal Year equal to the product
of X * Y (such product referred to below as the
"Pro-Rata Bonus"), where:
X = the greatest of (a) the largest Bonus paid to
Executive in respect of the two Fiscal Years
preceding the date of termination; provided
that the Bonus paid to Executive in respect of
the 1999 Fiscal Year pursuant to the
Corporation's 1999 Executive Bonus Plan
shall be annualized for this purpose (the
"Look-Back Bonus"), (b) the Bonus which
would have been paid to Executive in respect
of the Fiscal Year in which termination
occurs if the Corporation attained its
budgeted financial performance, and
accomplished any other targeted goals, for
such year, as reasonably determined by the
Compensation Committee of the Board (the
"Target Bonus"), or (c) the Bonus which
would have been paid to Executive in respect
of the Fiscal Year in which termination
<PAGE>
occurs based on the Corporation's actual
performance, and actual accomplishment of any
other targeted goals, as reasonably determined by
the Compensation Committee of the Board (the
"Actual Bonus," and the greatest of (a), (b) and
(c) the "Highest Bonus"); and
Y = the number of days elapsed in such year
preceding the date of termination divided by 365;
d. pay Executive's estate, within 30 days after the date
of death, the amount described in clause (iv) of the
first sentence of the second to last paragraph of
Section 7.D.;
e. provide those death benefits to which Executive is
entitled at the date of Executive's death under any
death benefit plans, policies or arrangements of the
Corporation which, following a Change in Control,
shall be at least comparable to those in effect at any
time during the ninety-day period immediately
preceding the Change in Control or, if more
favorable to Executive and/or Executive's designees,
as in effect on the date of Executive's death with
respect to other key executives and their designees;
and
f. provide to Executive's family the welfare benefits, or
payment in lieu of welfare benefits, described in clause
(iii) of the first sentence, and the second sentence, of
the second to last paragraph of Section 7.D.
In addition, upon a termination of Executive in accordance
with this Section 7.A:
g. all non-vested stock options, and any other non-
vested stock or stock-based awards issued by the
Corporation or any subsidiary of the Corporation,
shall immediately become fully vested, non-
forfeitable and exercisable; provided that, in the case
of options or awards granted by Triarc Beverage
Holdings Corp. ("TBHC"), this clause g. shall not
<PAGE>
be operative unless and until such vesting would not
constitute a default or an event of default, or result
in a mandatory prepayment requirement, under the terms
of any agreement for indebtedness for borrowed money
(each, a "Financing Limitation"); and
h. all Executive's stock options (A) granted on or after
February 24, 2000 by the Corporation or any of its
subsidiaries, or (B) granted by the Corporation
before February 24, 2000 (including those
previously vested) if the exercise price thereof is
greater than the closing price of the Corporation's
common stock on the New York Stock Exchange on
February 24, 2000, shall remain exercisable until the
earlier of (i) one year following termination or (ii)
their respective stated expiration dates; provided that
in the case of options or awards described in
subclause (A) of this clause h. which are granted by
TBHC, this clause h. shall be subject to any
applicable Financing Limitation.
B. Disability. If Executive's employment is terminated by
reason of Executive's disability, the Corporation shall:
a. pay Executive, in a lump sum in cash within 30 days
following the Disability Effective Date, the amounts
described in clauses a and d of Section 7.D.;
b. pay Executive's estate the amounts described in
clauses b and c of Section 7.D. at the time or times
determined by the Corporation, but in no event less
rapidly than substantially equal annual installments
beginning no later than 30 days after the Disability
Effective Date;
c. pay Executive the Pro-Rata Bonus for the Fiscal Year in
which the Disability Effective Date occurs, to be paid
to Executive in a lump sum in cash at the time Executive
would have been entitled to receive his Bonus for such
Fiscal Year;
<PAGE>
d. pay Executive, within 30 days after the Disability
Effective Date, the amount described in clause (iv)
of the first sentence of the second to last paragraph
of Section 7.D.;
e. provide those disability benefits to which Executive
is entitled at the Disability Effective Date under any
disability benefit plans, policies or arrangements of
the Corporation which, following a Change in
Control, shall be at least comparable to those in
effect at any time during the ninety-day period
immediately preceding the Change in Control or, if
more favorable to Executive and/or Executive's
designees, as in effect on the Disability Effective
Date with respect to other key executives and their
designees; and
f. provide to Executive and his family the benefits, or
payment in lieu of benefits, described in clause (iii)
of the first sentence, and the second sentence, of the
second to last paragraph of Section 7.D.
In addition, upon a termination of Executive in accordance
with this Section 7.B:
g. all non-vested stock options, and any other non-
vested stock or stock-based awards issued by the
Corporation or any subsidiary of the Corporation,
shall immediately become fully vested, non-
forfeitable and exercisable; provided that, in the case
of options or awards granted by TBHC, this clause
g. shall be subject to any applicable Financing
Limitation; and
h. all Executive's stock options (A) granted on or after
February 24, 2000 by the Corporation or any of its
subsidiaries, or (B) granted by the Corporation
before February 24, 2000 (including those
previously vested) if the exercise price thereof is
greater than the closing price of the Corporation's
common stock on the New York Stock Exchange on
February 24, 2000, shall remain exercisable until the
earlier of (i) one year following termination or (ii)
their respective stated expiration dates; provided that
in the case of options or awards described in
<PAGE>
subclause (A) of this clause h. which are granted by
TBHC, this clause h. shall be subject to any
applicable Financing Limitation.
C. Cause or Without Good Reason. If Executive's employment shall
be terminated (i) by the Corporation with Cause, or (ii) by
Executive without Good Reason, the Corporation shall pay
Executive his Base Salary through the date of termination and
any accrued vacation pay, and shall have no further
obligations to Executive under this Agreement.
D. Without Cause or With Good Reason. If Executive's employment
shall be terminated (i) by the Corporation without Cause, or
(ii) by Executive with Good Reason, the Corporation shall pay
to Executive in a lump sum in cash within ten (10) days after
the date of termination the aggregate of the following
amounts:
a. to the extent not theretofore paid, Executive's Base
Salary through the date of termination plus any
Bonus amounts which have become payable and any
accrued vacation pay;
b. Executive's Base Salary for the remainder of the
Employment Period;
c. five times the Highest Bonus; provided that, for this
purpose, the Highest Bonus shall be calculated using
only the Look-Back Bonus and the Target Bonus;
and
d. five times the sum of employer contributions paid or
accrued on Executive's behalf to any qualified or
nonqualified defined contribution retirement plans
during the calendar year immediately preceding
termination.
In addition, upon a termination of Executive in
accordance with this Section 7.D, the Corporation shall (i)
pay Executive the Pro-Rata Bonus for the Fiscal Year in which
the termination date occurs, to be paid to Executive in a lump
sum in cash at the time Executive would have been entitled to
receive his Bonus for such Fiscal Year, (ii) if the Actual
Bonus for the Fiscal Year in which the termination date
occurs, as calculated following the end of
<PAGE>
such Fiscal Year, exceeds the Highest Bonus as determined in
accordance with clause c. immediately above, pay Executive
five times the amount by which such Actual Bonus exceeds such
Highest Bonus in a lump sum in cash at the time Executive
would have been entitled to receive his Bonus for such Fiscal
Year; (iii) continue to provide welfare benefits to Executive
and his family for the remainder of the Employment Period at
least equal to those which were being provided to them in
accordance with Section 5.C at any time within the six-month
period ending on the date of termination and (iv) credit
Executive with five additional years of age and service under
each qualified and nonqualified defined benefit pension plan
of the Corporation in which Executive participates at the time
of termination; provided that in the case of a qualified
defined benefit pension plan, the present value of the
additional benefit Executive would have accrued if he had been
credited with such additional years of age and service
(computed using the actuarial assumptions used for purposes of
the most recent actuarial report in respect of such plan) will
be paid in a lump sum in cash within thirty (30) days after
the date of termination; further provided that, in computing
such additional benefit, Executive shall be deemed to earn
compensation for such additional five-year period at the same
rate as in the calendar year immediately preceding such
termination. To the extent that the benefits provided for in
clause (iii) are not permissible after termination of
employment under the terms of the benefit plans of the
Corporation then in effect, the Corporation shall pay to
Executive in a lump sum in cash within thirty (30) days after
the date of termination an amount equal to the after-tax cost
to Executive of acquiring on a non-group basis, for the
remainder of the Employment Period, those benefits lost to
Executive and/or Executive's family as a result of Executive's
termination.
In addition, upon a termination of Executive in accordance
with this Section 7.D (including for this purpose a
termination at the end of the Employment Period following
delivery by the Corporation to Executive of a notice not to
extend the Employment Period pursuant to the proviso in
Section 1 hereof):
<PAGE>
e. all non-vested stock options, and any other non-
vested stock or stock-based awards issued by the
Corporation or any subsidiary of the Corporation,
shall immediately become fully vested, non-
forfeitable and exercisable; provided that, in the case
of options or awards granted by TBHC, this clause
e. shall be subject to any applicable Financing
Limitation; and
f. all Executive's stock options (A) granted on or after
February 24, 2000 by the Corporation or any of its
subsidiaries, or (B) granted by the Corporation
before February 24, 2000 (including those
previously vested) if the exercise price thereof is
greater than the closing price of the Corporation's
common stock on the New York Stock Exchange on
February 24, 2000, shall remain exercisable until the
earlier of (i) one year following termination or (ii)
their respective stated expiration dates; provided that
in the case of options or awards described in
subclause (A) of this clause f. which are granted by
TBHC, this clause f. shall be subject to any
applicable Financing Limitation.
8. Non-Exclusivity of Rights. Nothing in this Agreement shall prevent or
limit Executive's continuing or future participation in any benefit, bonus,
incentive (whether cash or equity based, or otherwise) or other plan or program
provided by the Corporation or any of its affiliated companies and for which
Executive may qualify, nor shall anything herein limit or otherwise affect such
rights as Executive may have under any stock option or other agreements with the
Corporation or any of its affiliated companies. Amounts which are vested
benefits or which Executive is otherwise entitled to receive under any plan or
program of the Corporation or any of its affiliated companies at or subsequent
to the date on which Executive's employment is terminated shall be payable in
accordance with such plan or program. Anything herein to the contrary
notwithstanding, if Executive becomes entitled to payments pursuant to Section
7.D hereof, the Executive agrees to waive payments under any severance plan or
program of the Corporation.
<PAGE>
9. Noncompetition; Nondisclosure; Nonsolicitation.
A. Executive hereby covenants and agrees that, during the
period of Executive's employment with the Corporation and
for one year thereafter (the "Covenant Period"), he shall
not, without the prior written consent of the Corporation,
engage in Competition (as defined below) with the
Corporation. For purposes of this Agreement, if Executive
takes any of the following actions he shall be engaged in
"Competition": engaging in or carrying on, directly or
indirectly, any enterprise, whether as an advisor, principal,
agent, partner, officer, director, employee, stockholder,
associate or consultant to any person, partnership,
corporation or any other business entity, that is principally
engaged in any business operating within the United States
of America, which is involved in business activities which
are the same as, similar to or in competition with the
principal business activities carried on by the Corporation,
or being definitely planned by the Corporation, at the time
of the termination of the Executive's employment; provided,
however, that "Competition" shall not include (i) the passive
ownership of securities in any public enterprise and exercise
of rights appurtenant thereto, so long as such securities
represent no more than five percent of the voting power of all
securities of such enterprise or (ii) the indirect ownership
of securities through ownership of shares in a registered
investment company.
B. Executive shall not, without the Corporation's prior written
consent, disclose or use any non-public confidential
information of or relating to the Corporation, whether
disclosed to or learned by Executive during the course of his
employment or otherwise, so long as such information is not
publicly known or available, except for such disclosures as
are required by law or in connection with Executive's
performance of services to the Corporation hereunder.
Executive further agrees that he shall not make any
statements at any time that disparage the reputation of the
Corporation or any of its affiliates. For purposes of this
Section 9, the term "affiliate" of the Corporation means the
Board, any and all Committees of the Board (the
"Committees") and any and all individual members of either
the Board or any of the Committees, in their capacity as
such, and any employee or officer of the Corporation.
<PAGE>
C. Executive hereby covenants and agrees that, during the
Covenant Period, he shall not attempt to influence, persuade
or induce, or assist any other person in so influencing,
persuading or inducing, (i) any customer of the Corporation
to give up, or to not commence, a business relationship with
the Corporation and (ii) if Executive's employment was
terminated by the Corporation with Cause or by Executive
without Good Reason, any employee of the Corporation
(other than Peter May) to cease such employment.
D. Executive agrees that all processes, technologies, designs
and inventions ("Inventions"), including new contributions,
improvements, ideas and discoveries, whether patentable or
not, conceived, developed, invented or made by him during
the Employment Period shall belong to the Corporation,
provided that such Inventions grew out of Executive's work
for the Corporation, are related in any manner to the
business (commercial or experimental) of the Corporation or
are conceived or made on the Corporation's time or with the
use of the Corporation's facilities or materials. Executive
shall further: (a) promptly disclose such Inventions to the
Corporation; (b) assign to the Corporation, without
additional compensation, all patent and other rights to such
Inventions for the United States and foreign countries; (c)
sign all papers necessary to carry out the foregoing; and (d)
give testimony in support of the status of Executive as the
inventor of such Inventions. Executive agrees that he will
not assert any rights to any Invention as having been made
or acquired by him prior to the Effective Date, except for
Inventions, if any, disclosed to the Corporation in writing
prior to the Effective Date.
E. Executive acknowledges and agrees that the remedy at law
available to the Corporation for breach of any of his
obligations under Section 9.A, B, C or D of this Agreement
would be inadequate, and that damages flowing from such
a breach may not readily be susceptible to being measured
in monetary terms. Accordingly, Executive acknowledges,
consents and agrees that, in addition to any other rights or
remedies which the Corporation may have at law, in equity
or under this Agreement, upon adequate proof of his
violation of any provision of Section 9 of this Agreement,
the Corporation shall be entitled to immediate injunctive
relief and may obtain a temporary order restraining any
<PAGE>
threatened or further breach, without the necessity of proof
of actual damage.
F. Executive acknowledges and agrees that the covenants set
forth in Section 9A, B, C and D of this Agreement are
reasonable and valid in geographical and temporal scope and
in all other respects. If any of such covenants or such other
provisions of this Agreement are found to be invalid or
unenforceable by a final determination of a court of
competent jurisdiction (i) the remaining terms and provisions
hereof shall be unimpaired and (ii) the invalid or
unenforceable term or provision shall be deemed replaced by
a term or provision that is valid and enforceable and that
comes closest to expressing the intention of the invalid or
unenforceable term or provision.
G. Executive understands that the provisions of Section 9A, B,
C and D of this Agreement may limit his ability to earn a
livelihood in a business similar to the business of the
Corporation but he nevertheless agrees and hereby
acknowledges that (i) such provisions do not impose a
greater restraint than is necessary to protect the goodwill or
other business interests of the Corporation, (ii) such
provisions contain reasonable limitations as to time and
scope of activity to be restrained, (iii) such provisions are
not harmful to the general public, (iv) such provisions are
not unduly burdensome to Executive, and (v) the
consideration provided hereunder is sufficient to compensate
Executive for the restrictions contained in Section 9 of this
Agreement. In consideration of the foregoing and in light of
Executive's education, skills and abilities, Executive agrees
that he shall not assert that, and it should not be considered
that, any provisions of Section 9 otherwise are void,
voidable or unenforceable or should be voided or held
unenforceable.
H. If Executive violates any of the restrictions contained in
Section 9A, B or C of this Agreement, the restrictive period
shall not run in favor of the Executive from the time of the
commencement of any such violation until such time as such
violation shall be cured by the Executive to the satisfaction
of the Corporation.
<PAGE>
10. Certain Additional Payments by the Corporation.
A. If it is determined (as hereafter provided) that any payment
or distribution by the Corporation to or for the benefit of
Executive, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or
otherwise pursuant to or by reason of any other agreement,
policy, plan, program or arrangement, including without
limitation any stock option, stock appreciation right or
similar right, or the lapse or termination of any restriction
on or the vesting or exercisability of any of the foregoing (a
"Payment"), would be subject to the excise tax imposed by
Section 4999 of the Code (or any successor provision
thereto) or to any similar tax imposed by state or local law,
or any interest or penalties with respect to such excise tax
(such tax or taxes, together with any such interest and
penalties, are hereafter collectively referred to as the
"Excise Tax"), then Executive will be entitled to receive an
additional payment or payments (a "Gross-Up Payment") in
an amount such that, after payment by Executive of all taxes
(including any interest or penalties imposed with respect to
such taxes), including any Excise Tax, imposed upon the
Gross-Up Payment, Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon
the Payments.
B. Subject to the provisions of Section 10.F hereof, all
determinations required to be made under this Section 10,
including whether an Excise Tax is payable by Executive
and the amount of such Excise Tax and whether a Gross-Up
Payment is required and the amount of such Gross-Up
Payment, will be made by a nationally recognized firm of
certified public accountants (the "Accounting Firm")
selected by Executive in his sole discretion. Executive will
direct the Accounting Firm to submit its determination and
detailed supporting calculations to both the Corporation and
Executive within 15 calendar days after the date of the
Change in Control or the date of Executive's termination of
employment, if applicable, and any other such time or times
as may be requested by the Corporation or Executive. If the
Accounting Firm determines that any Excise Tax is payable
by Executive, the Corporation will pay the required Gross-
Up Payment to Executive within five business days after
receipt of such determination and calculations. If the
Accounting Firm determines that no Excise Tax is payable
<PAGE>
by Executive, it will, at the same time as it makes such
determination, furnish Executive with an opinion that he has
substantial authority not to report any Excise Tax on his
federal, state, local income or other tax return. Any
determination by the Accounting Firm as to the amount of the
Gross-Up Payment will be binding upon the Corporation and
Executive. As a result of the uncertainty in the application
of Section 4999 of the Code (or any successor provision
thereto) and the possibility of similar uncertainty regarding
applicable state or local tax law at the time of any
determination by the Accounting Firm hereunder, it is possible
that Gross-Up Payments which will not have been made by the
Corporation should have been made (an "Underpayment"),
consistent with the calculations required to be made
hereunder. In the event that the Corporation exhausts or fails
to pursue its remedies pursuant to Section 10.F hereof and
Executive thereafter is required to make a payment of any
Excise Tax, Executive will direct the Accounting Firm to
determine the amount of the Underpayment that has occurred and
to submit its determination and detailed supporting
calculations to both the Corporation and Executive as promptly
as possible. Any such Underpayment will be promptly paid by
the Corporation to, or for the benefit of, Executive within
five business days after receipt of such determination and
calculations.
C. The Corporation and Executive will each provide the
Accounting Firm access to and copies of any books, records
and documents in the possession of the Corporation or
Executive, as the case may be, reasonably requested by the
Accounting Firm, and otherwise cooperate with the
Accounting Firm in connection with the preparation and
issuance of the determination contemplated by Section 10.B
hereof.
D. The federal, state and local income or other tax returns filed
by Executive will be prepared and filed on a consistent basis
with the determination of the Accounting Firm with respect
to the Excise Tax payable by Executive. Executive will
make proper payment of the amount of any Excise Tax, and
at the request of the Corporation, provide to the Corporation
true and correct copies (with any amendments) of his federal
income tax return as filed with the Internal Revenue Service
and corresponding state and local tax returns, if relevant, as
<PAGE>
filed with the applicable taxing authority, and such other
documents reasonably requested by the Corporation, evidencing
such payment. If prior to the filing of Executive's federal
income tax return, or corresponding state or local tax return,
if relevant, the Accounting Firm determines that the amount of
the Gross-Up Payment should be reduced, Executive will within
five business days pay to the Corporation the amount of such
reduction.
E. The fees and expenses of the Accounting Firm for its
services in connection with the determinations and
calculations contemplated by Sections 10.B and D hereof
will be borne by the Corporation. If such fees and expenses
are initially advanced by Executive, the Corporation will
reimburse Executive the full amount of such fees and
expenses within five business days after receipt from
Executive of a statement therefor and reasonable evidence of
his payment thereof.
F. Executive will notify the Corporation in writing of any claim
by the Internal Revenue Service that, if successful, would
require the payment by the Corporation of a Gross-Up
Payment. Such notification will be given as promptly as
practicable but no later than 10 business days after Executive
actually receives notice of such claim and Executive will
further apprise the Corporation of the nature of such claim
and the date on which such claim is requested to be paid (in
each case, to the extent known by Executive). Executive
will not pay such claim prior to the earlier of (i) the
expiration of the 30-calendar-day period following the date
on which he gives such notice to the Corporation and (ii) the
date that any payment of amount with respect to such claim is
due. If the Corporation notifies Executive in writing prior
to the expiration of such period that it desires to contest
such claim, Executive will:
(vi) provide the Corporation with any written records or
documents in his possession relating to such claim
reasonably requested by the Corporation;
(vii) take such action in connection with contesting such
claim as the Corporation will reasonably request in
writing from time to time, including without limitation
accepting legal representation with respect to such
claim by an attorney competent in respect of
<PAGE>
the subject matter and reasonably selected by the
Corporation;
(viii)cooperate with the Corporation in good faith in order
effectively to contest such claim; and
(ix) permit the Corporation to participate in any
proceedings relating to such claim;
provided, however, that the Corporation will bear and pay
directly all costs and expenses (including interest and
penalties) incurred in connection with such contest and will
indemnify and hold harmless Executive, on an after-tax basis,
for and against any Excise Tax or income tax, including
interest and penalties with respect thereto, imposed as a
result of such representation and payment of costs and
expenses. Without limiting the foregoing provisions of this
Section 10.F, the Corporation will control all proceedings
taken in connection with the contest of any claim contemplated
by this Section 10.F and, at its sole option, may pursue or
forego any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in respect
of such claim (provided that Executive may participate therein
at his own cost and expense) and may, at its option, either
direct Executive to pay the tax claimed and sue for a refund
or contest the claim in any permissible manner, and Executive
agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction
and in one or more appellate courts, as the Corporation will
determine; provided, however, that if the Corporation directs
Executive to pay the tax claimed and sue for a refund, the
Corporation will advance the amount of such payment to
Executive on an interest-free basis and will indemnify and
hold Executive harmless, on an after-tax basis, from any
Excise Tax or income tax, including interest or penalties with
respect thereto, imposed with respect to such advance; and
provided further, however, that any extension of the statute
of limitations relating to payment of taxes for the taxable
year of Executive with respect to which the contested amount
is claimed to be due is limited solely to such contested
amount. Furthermore, the Corporation's control of any such
contested claim will be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and
Executive will be entitled to settle or contest,
<PAGE>
as the case may be, any other issue raised by the Internal
Revenue Service or any other taxing authority.
G. If, after the receipt by Executive of an amount advanced by
the Corporation pursuant to Section 10.F hereof, Executive
receives any refund with respect to such claim, Executive
will (subject to the Corporation's complying with the
requirements of Section 10.F hereof) promptly pay to the
Corporation the amount of such refund (together with any
interest paid or credited thereon after any taxes applicable
thereto). If, after the receipt by Executive of an amount
advanced by the Corporation pursuant to Section 10.F
hereof, a determination is made that Executive will not be
entitled to any refund with respect to such claim and the
Corporation does not notify Executive in writing of its intent
to contest such denial or refund prior to the expiration of 30
calendar days after such determination, then such advance
will be forgiven and will not be required to be repaid and the
amount of such advance will offset, to the extent thereof, the
amount of Gross-Up Payment required to be paid pursuant
to this Section 10.
11. Successors.
A. This Agreement is personal to Executive and without the prior
written consent of the Corporation shall not be assignable by
Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and
be enforceable by Executive's legal representatives.
B. This Agreement shall inure to the benefit of and be binding
upon the Corporation and its successors.
C. The Corporation will require any successor (whether direct
or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or
assets of the Corporation to expressly assume and agree to
perform this Agreement in the same manner and to the same
extent that the Corporation would be required to perform it
if no such succession had taken place. As used in this
Agreement, "Corporation" shall mean the Corporation as
hereinbefore defined and any successor to its business and/or
assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
<PAGE>
12. Miscellaneous.
A. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without
reference to principles of conflict of laws. The parties
hereto agree that exclusive jurisdiction of any dispute
regarding this Agreement shall be the state or federal courts
located in New York, New York. The Corporation shall
directly pay the fees and expenses of counsel and other
experts retained by Executive in enforcing this Agreement,
as they may be incurred, provided that Executive shall be
required to reimburse the Corporation for any amounts so
paid unless at least one material matter in dispute is
decided in favor of Executive.
B. In the event of any termination of Executive's employment
hereunder, Executive shall be under no obligation to seek
other employment or otherwise mitigate the obligations of
the Corporation under this Agreement, and there shall be no
offset against amounts due Executive under this Agreement
on account of amounts purportedly owing by Executive to
the Corporation. Any amounts due to Executive under this
Agreement upon termination of employment are considered
to be reasonable by the Corporation and are not in the nature
of a penalty.
C. The Corporation will indemnify Executive, to the maximum
extent permitted by applicable law, against all costs, charges
and expenses incurred or sustained by him in connection with
any action, suit or proceeding to which he may be made a party
by reason of his being an officer, director or employee of the
Corporation or of any subsidiary or affiliate of the
Corporation.
D. The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect.
E. This Agreement may not be amended or modified otherwise
than by a written agreement executed by the parties hereto
or their respective successors and legal representatives.
F. All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other
party or by registered or certified mail, return receipt
<PAGE>
requested, postage prepaid, or by facsimile or nationally
recognized overnight courier service, addressed as follows:
If to Executive:
Nelson Peltz
543 Byram Lake Road
Mt. Kisco, New York 10549
Facsimile: (914) 666-4786
If to the Corporation:
Triarc Companies, Inc.
280 Park Avenue
New York, New York 10017
Attention: General Counsel
Facsimile: (212) 451-3216
in either case, with a copy to:
Paul, Weiss, Rifkind, Wharton &
Garrison
1285 Avenue of the Americas
New York, New York 10019
Attention: Neale M. Albert, Esq.
Facsimile: (212) 757-3990
or to such other address as either party shall have furnished
to the other in writing in accordance herewith. Notice and
communications shall be effective when actually received by
the addressee.
G. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
H. The Corporation may withhold from any amounts payable under
this Agreement such Federal, state or local taxes as shall be
required to be withheld pursuant to any applicable law or
regulation.
<PAGE>
I. This Agreement contains the entire understanding of the
Corporation and Executive with respect to the subject matter
hereof.
IN WITNESS WHEREOF, Executive has hereunto set his hand and the
Corporation has caused this Agreement to be executed in its name on its behalf,
all as of the day and year first above written.
NELSON PELTZ
------------------------------
Nelson Peltz
TRIARC COMPANIES, INC.
By: BRIAN L. SCHORR
------------------------
Name: Brian L. Schorr
Title: Executive Vice President
and General Counsel
<PAGE>
Exhibit 10.2
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is made as of May 1, 1999 (the
"Effective Date"), by and between TRIARC COMPANIES, INC., a Delaware
corporation (the "Corporation"), and Peter W. May (the "Executive").
The Corporation, on behalf of itself and its shareholders, wishes to
continue to retain the Executive as an integral part of the management of the
Corporation.
IT IS, THEREFORE, AGREED:
1. Term of Agreement. This Agreement shall be effective as of the
Effective Date and, subject to Section 6, expire on April 30, 2004 (the
"Employment Period"); provided that the Employment Period shall automatically be
extended for successive one-year periods on May 1 of each year unless, not later
than 180 days preceding the date of any such extension, either party gives the
other party written notice (in accordance with Section 12(b)) of such party's
intention not to further extend the Employment Period.
2. Change of Control. For the purpose of this Agreement, a
"Change of Control" shall be deemed to have taken place if:
A. Individuals who, on the date hereof, constitute the Board
of Directors (the "Board") of the Corporation (the
"Incumbent Directors") cease for any reason to constitute
at least a majority of the Board, provided that any person
becoming a director subsequent to the date hereof, whose
election or nomination for election was approved by a
vote of at least two-thirds of the Incumbent Directors then
on the Board (either by a specific vote or by approval of
the proxy statement of the Corporation in which such
person is named as a nominee for director, without written
objection to such nomination) shall be an Incumbent
Director; provided, however, that no individual initially
elected or nominated as a director of the Corporation as a
result of an actual or threatened election contest with
respect to directors or as a result of any other actual or
threatened solicitation of proxies or consents by or on
behalf of any person other than the Board shall be deemed
to be an Incumbent Director;
<PAGE>
B. Any "Person" (as such term is defined in Section 3(a)(9)
of the Securities Exchange Act of 1934 (the "Exchange
Act") and as used in Sections 13(d)(3) and 14(d)(2) of the
Exchange Act) is or becomes a "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Corporation representing
50% or more of the combined voting power of the
Corporation's then outstanding securities eligible to vote
for the election of the Board (the "Voting Securities");
provided, however, that the event described in this
paragraph B. shall not be deemed to be a Change in
Control by virtue of any of the following acquisitions: (i)
by the Corporation or any subsidiary of the Corporation in
which the Corporation owns more than 50% of the
combined voting power of such entity (a "Subsidiary"),
(ii) by any employee benefit plan (or related trust)
sponsored or maintained by the Corporation or any
Subsidiary, (iii) by any underwriter temporarily holding
the Corporation's Voting Securities pursuant to a public
offering of such Voting Securities, (iv) pursuant to a Non-
Qualifying Transaction (as defined in paragraph C
immediately below), (v) pursuant to any acquisition by
Executive or by any Person which is an "affiliate" (within
the meaning of 17 C.F.R.ss.230.405) of Executive, or (vi)
pursuant to any acquisition by any Person as to which
Executive and Nelson Peltz, acting as a "group" (within
the meaning of Section 14(d)(2) of the Exchange Act), are
affiliates (an "Excluded Person");
C. The consummation of a merger, consolidation, statutory
share exchange or similar form of corporate transaction
involving the Corporation or any of its Subsidiaries that
requires the approval of the Corporation's stockholders,
whether for such transaction or the issuance of securities
in the transaction (a "Business Combination"), unless
immediately following such Business Combination: (i)
more than 50% of the total voting power of (A) the
corporation resulting from such Business Combination
(the "Surviving Corporation"), or (B) if applicable, the
ultimate parent corporation that directly or indirectly has
beneficial ownership of 100% of the voting securities
eligible to elect directors of the Surviving Corporation
(the "Parent Corporation"), is represented by the
Corporation's Voting Securities that were outstanding
immediately prior to such Business Combination (or, if
<PAGE>
applicable, is represented by shares into which the
Corporation's Voting Securities were converted pursuant to
such Business Combination), and such voting power among the
holders thereof is in substantially the same proportion as the
voting power of the Corporation's Voting Securities among the
holders thereof immediately prior to the Business Combination,
(ii) no Person (other than (A) any employee benefit plan (or
related trust) sponsored or maintained by the Surviving
Corporation or the Parent Corporation or (B) an Excluded
Person) is or becomes the beneficial owner, directly or
indirectly, of 50% or more of the total voting power of the
outstanding voting securities eligible to elect directors of
the Parent Corporation (or, if there is no Parent Corporation,
the Surviving Corporation) and (iii) at least a majority of
the members of the board of directors of the Parent
Corporation (or, if there is no Parent Corporation, the
Surviving Corporation) following the consummation of the
Business Combination were Incumbent Directors at the time of
the Board's approval of the execution of the initial agreement
providing for such Business Combination (any Business
Combination which satisfies all of the criteria specified in
(i), (ii) and (iii) above shall be deemed to be a
"Non-Qualifying Transaction");
D. A sale of all or substantially all of the Corporation's
assets, other than to an Excluded Person;
E. The stockholders of the Corporation approve a plan of
complete liquidation or dissolution of the Corporation; or
F. Such other events as the Board may designate.
Notwithstanding the foregoing, a Change in Control of the Company shall
not be deemed to occur solely because any person acquires beneficial ownership
of more than 50% of the Corporation's Voting Securities as a result of the
acquisition of the Corporation's Voting Securities by the Corporation which
reduces the number of the Corporation's Voting Securities outstanding; provided,
that if after such acquisition by the Corporation such person becomes the
beneficial owner of additional Corporation Voting Securities that increases the
percentage of outstanding Corporation Voting Securities beneficially owned by
such person, a Change in Control of the Corporation shall then occur.
3. Employment Period. The Corporation hereby agrees to continue
Executive in its employ for the Employment Period.
<PAGE>
4. Position and Duties.
A. As of the date hereof, Executive is employed as President
and Chief Operating Officer of the Corporation, and as
such Executive is responsible for oversight and
management of all operations and activities of the
Corporation. Executive shall report to the Chief
Executive Officer of the Corporation and the Board.
During the Employment Period, Executive's position
(including status, offices, titles and reporting
requirements), authority, duties and responsibilities shall
be consistent with those of the President and Chief
Operating Officer of a publicly traded corporation.
Executive's services shall be performed primarily at the
executive offices of the Corporation located in New York
City, subject to reasonable travel requirements.
B. Excluding periods of vacation, sick leave and disability to
which Executive is entitled, Executive agrees to devote
reasonable attention and time during normal business
hours to the business and affairs of the Corporation and,
to the extent necessary to discharge the responsibilities
assigned to Executive hereunder, to use Executive's
reasonable best efforts to perform faithfully and efficiently
such responsibilities. Executive may (i) serve on
corporate, civic, educational, philanthropic or charitable
boards or committees, (ii) deliver lectures, fulfill speaking
engagements or teach at educational institutions and (iii)
manage personal investments, so long as such activities do
not significantly interfere with the performance of
Executive's responsibilities hereunder. It is expressly
understood and agreed that to the extent that any such
activities have been conducted by Executive prior to a
Change in Control, the continued conduct of such
activities (or the conduct of activities similar in nature and
scope thereto) subsequent to the Change in Control shall
not thereafter be deemed to interfere with the performance
of Executive's responsibilities to the Corporation.
5. Compensation.
A. Base Salary. During the Employment Period, as
consideration for services rendered, the Corporation shall
pay to Executive a base salary at an annual rate at equal to
$1,200,000 for each year of the Employment Period, as
<PAGE>
adjusted as described in the following sentence ("Base
Salary"), payable in accordance with the regular pay policy of
the Corporation. During the Employment Period, Base Salary may
be increased, but not decreased, at the discretion of the
Board or the Compensation Committee thereof. Any increase in
Base Salary shall not serve to limit or reduce any other
obligation to Executive under this Agreement. Executive's Base
Salary may not be reduced after any such increase.
B. Bonus and Incentive Programs. Executive shall (without
duplication) receive an annual bonus in respect of each
fiscal year of the Corporation (a "Fiscal Year") ending
during the Employment Period, at least equal to the bonus
amount actually earned by Executive for such fiscal year
under the Corporation's 1999 Executive Bonus Plan, as it
may hereinafter be amended, modified or superseded or
supplemented by another bonus plan sponsored by the
Corporation or any affiliated company; provided that the
Board (including the Compensation Committee thereof)
may award Executive additional bonus amounts in its
discretion (the aggregate of such bonus amounts being
referred to hereunder as the "Bonus"). In addition to the
Base Salary and Bonus payable as hereinabove provided,
Executive shall be entitled to participate during the
Employment Period in all incentive programs (whether
cash or equity based, or otherwise), savings, pension,
profit sharing and retirement plans and programs
applicable to other key executives of the Corporation. In
no event shall such plans and programs, in the aggregate,
provide Executive following a Change in Control with
compensation, benefits and reward opportunities less
favorable than the most favorable of those provided by the
Corporation and its subsidiaries for Executive under such
plans and programs as in effect at any time during the
ninety-day period immediately preceding the Change in
Control or, if more favorable to Executive, as provided at
any time thereafter with respect to any other key
executive.
C. Welfare Benefit Plans. During the Employment Period,
Executive and/or Executive's family, as the case may be,
shall be eligible for participation in and shall receive all
benefits under each welfare benefit plan of the
Corporation, including, without limitation, all medical,
<PAGE>
prescription, dental, disability, salary continuance, life,
accidental death and travel accident insurance plan and
programs of the Corporation and its affiliated companies. In
no event shall such plans and programs, in the aggregate,
provide Executive following a Change in Control with benefits
less favorable than the most favorable of those provided by
the Corporation and its affiliated companies for Executive
under such plans and programs as in effect at any time during
the ninety-day period immediately preceding the Change in
Control or, if more favorable to Executive, as provided at any
time thereafter with respect to any other key executive.
D. Expenses. During the Employment Period, Executive
shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by Executive in the
performance of his duties hereunder, subject to the
submission of such written documentation as the
Corporation may reasonably require in accordance with its
standard expense reimbursement practices and policies.
E. Office and Support Staff. During the Employment Period,
Executive shall be entitled to an office and secretarial and
other assistance consistent with his position. For five
years following a Change in Control, Executive shall be
entitled to an office or offices of a size and with
furnishings and other appointments, and to secretarial and
other assistance, at least equal to those provided to
Executive at any time during the ninety-day period
immediately preceding the Change in Control, or, if more
favorable to Executive, as provided at any time thereafter
with respect to any other key executive.
F. Vacation. During the Employment Period, Executive
shall be entitled to six weeks per year of paid vacation.
G. Perquisites. During the Employment Period, Executive
shall be entitled to (i) be provided a driver of Executive's
choice, at the Corporation's cost, (ii) have a new
automobile of Executive's choice provided to him by the
Corporation at the Corporation's cost (and to have such
automobile replaced with a new one once it is three years
old), and be provided reimbursement for expenses
incurred by Executive in maintaining such automobile,
including parking, gasoline, insurance and maintenance,
<PAGE>
(iii) reimbursement for tax, estate, financial planning and
accounting services from entities or individuals selected by
Executive, up to a maximum of $50,000 per year, and (iv) the
use of aircraft owned, rented or leased by the Corporation.
The Corporation shall report the taxable portion of the above
in accordance with applicable rules and regulations of the
Internal Revenue Service. The Corporation acknowledges that it
is making available the use of Corporation aircraft pursuant
to clause (iv) above primarily to ensure the safety and
security of Executive for the benefit of the Corporation, and
the Corporation encourages Executive to use such aircraft when
he travels, irrespective of whether such travel is primarily
for personal or business purposes.
H. Life Insurance. The Executive will cooperate in assisting the
Corporation in obtaining a key man life insurance policy on
the life of Executive, the beneficiary of which shall be named
by the Corporation, including completing all necessary
application materials and submitting to one or more physical
examinations with a physician of the Corporation's choice.
6. Termination. This Agreement shall terminate under the
following circumstances:
A. Death or Disability. This Agreement and the Employment
Period shall terminate automatically upon Executive's
death. The Corporation may terminate this Agreement,
after having established Executive's Disability (pursuant
to the definition of "Disability" set forth below), by giving
to Executive written notice of its intention to terminate
Executive's employment. In such a case, Executive's
employment with the Corporation shall terminate effective
on the 180th day after receipt of such notice (the
"Disability Effective Date"), provided that, within 180
days after such receipt, Executive shall not have returned
to full performance of Executive's duties. For purposes
of this Agreement, "Disability" means personal injury,
illness or other cause which, after the expiration of not
less than 180 days after its commencement, renders
Executive unable to perform his duties with substantially
the same level of quality as immediately prior to such
incident and such disability is determined to be total and
permanent by a physician selected by the Corporation or
<PAGE>
its insurers and acceptable to Executive or Executive's legal
representative (such agreement as to acceptability not to be
withheld unreasonably).
B. With or Without Cause. The Corporation may terminate
Executive's employment with or without "Cause." The
Employment Period shall immediately end upon a
termination by the Corporation with Cause. For purposes
of this Agreement, "Cause" means (i) the willful and
continued failure of Executive to perform substantially his
duties with the Corporation (other than any such failure
resulting from Executive's incapacity due to physical or
mental illness or any such failure subsequent to Executive
being delivered a Notice of Termination without Cause by
the Corporation or delivering a Notice of Termination for
Good Reason to the Corporation) after a written demand
for substantial performance is delivered to Executive by
the Board which specifically identifies the manner in
which the Board believes that Executive has not
substantially performed Executive's duties and Executive
has failed to cure such failure to the reasonable
satisfaction of the Board, (ii) the willful engaging by
Executive in gross misconduct which results in substantial
damage to the Corporation or its affiliates, or (iii)
Executive's conviction (by a court of competent
jurisdiction, not subject to further appeal) of, or pleading
guilty to, a felony. For purpose of this paragraph B, no
act or failure to act by Executive shall be considered
"willful" unless done or omitted to be done by Executive
in bad faith and without reasonable belief that Executive's
action or omission was in the best interests of the
Corporation or its affiliates. Any act, or failure to act,
based upon authority given pursuant to a resolution duly
adopted by the Board or based upon the advice of counsel
for the Corporation shall be conclusively presumed to be
done, or omitted to be done, by Executive in good faith
and in the best interests of the Corporation. Cause shall
not exist unless and until the Corporation has delivered to
Executive, along with the Notice of Termination for
Cause, a copy of a resolution duly adopted by three-
quarters (3/4) of the entire Board (excluding Executive if
Executive is a Board member) at a meeting of the Board
called and held for such purpose (after reasonable notice
to Executive and an opportunity for Executive, together
with counsel, to be heard before the Board), finding that
<PAGE>
in the good faith opinion of the Board an event set forth in
clauses (i) - (iii) above has occurred and specifying the
particulars thereof in detail. The Board must notify Executive
of any event constituting Cause within ninety (90) days
following the Board's knowledge of its existence or such event
shall not constitute Cause under this Agreement.
C. With or Without Good Reason. Executive's employment
may be terminated by Executive with or without Good
Reason. The Employment Period shall immediately end
upon a termination by Executive without Good Reason.
For purposes of this Agreement, "Good Reason" means:
(i) (a) any change in the duties or responsibilities
(including reporting responsibilities) of Executive
that is inconsistent in any material and adverse
respect with Executive's position(s), duties,
responsibilities or status with the Corporation
immediately prior to the Effective Date (including
any material and adverse diminution of such duties
or responsibilities); provided, however, that Good
Reason shall not be deemed to occur upon a
change in duties or responsibilities (other than
reporting responsibilities) that is solely and directly
a result of the Corporation no longer being a
publicly traded entity and does not involve any
other event set forth in this paragraph C or (b) a
material and adverse change in Executive's titles or
offices (including his position as President and
Chief Operating Officer) with the Corporation;
(ii) any failure by the Corporation to comply with any
of the provisions of Section 5 of this Agreement;
(iii) the Corporation requiring Executive to be based at any
office or location other than that described in Section
4.A. hereof, or requiring Executive to travel in the
performance of his duties significantly more extensively
than the customary travel requirements of Executive as
of the Effective Date;
(iv) any purported termination by the Corporation of
Executive's employment otherwise than as
permitted by this Agreement, it being understood
<PAGE>
that any such purported termination shall not be
effective for any purpose of this Agreement; or
(v) any failure by the Corporation to comply with and
satisfy Section 11.C of this Agreement by causing any
successor to the Corporation to expressly assume and
agree to perform this Agreement with Executive, to the
full extent set forth in said Section 11.C;
provided that a termination by Executive with Good Reason shall be effective
only if, within 30 days following the delivery of a Notice of Termination for
Good Reason by Executive to the Corporation, the Corporation has failed to cure
the circumstances giving rise to Good Reason to the reasonable satisfaction of
Executive. For purposes of this Section 6.C, a good faith determination made by
Executive that a "Good Reason" for termination has occurred, and has not been
adequately cured, shall be conclusive and binding. In addition to the above, any
termination by Executive for any reason on or after a Change of Control shall be
deemed to be a termination with Good Reason.
D. Expiration of the Employment Period. This Agreement
shall terminate upon the expiration of the Employment
Period due to the Corporation's giving to Executive a
written notice of intention not to extend the Employment
Period in accordance with Section 1.
E. Notice of Termination. Any termination by the
Corporation with or without Cause or by Executive with
or without Good Reason shall be communicated by Notice
of Termination to the other party hereto given in
accordance with Section 12.B of this Agreement. For
purposes of this Agreement, a "Notice of Termination"
means a written notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii)
sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Executive's
employment under the provision so indicated and (iii) if
the termination date is other than the date of receipt of
such notice specifies the proposed termination date.
7. Obligations of the Corporation Upon Termination.
A. Death. If Executive's employment is terminated by
reason of Executive's death, the Corporation shall:
<PAGE>
a. pay Executive's estate, in a lump sum in cash
within 30 days after the date of death, the amounts
described in clauses a and d of Section 7.D.;
b. pay Executive's estate the amounts described in
clauses b and c of Section 7.D. at the time or times
determined by the Corporation, but in no event
less rapidly than five substantially equal annual
installments beginning no later than 30 days after
the date of death;
c. pay Executive's estate, in a lump sum in cash at the
time Executive would have been entitled to receive his
Bonus for the Fiscal Year in which his death occurs, a
pro-rata Bonus for such Fiscal Year equal to the product
of X * Y (such product referred to below as the
"Pro-Rata Bonus"), where:
X = the greatest of (a) the largest Bonus paid to
Executive in respect of the two Fiscal
Years preceding the date of termination;
provided that the Bonus paid to Executive
in respect of the 1999 Fiscal Year pursuant
to the Corporation's 1999 Executive Bonus
Plan shall be annualized for this purpose
(the "Look-Back Bonus"), (b) the Bonus
which would have been paid to Executive
in respect of the Fiscal Year in which
termination occurs if the Corporation
attained its budgeted financial performance,
and accomplished any other targeted goals,
for such year, as reasonably determined by
the Compensation Committee of the Board
(the "Target Bonus"), or (c) the Bonus
which would have been paid to Executive
in respect of the Fiscal Year in which
termination occurs based on the
Corporation's actual performance, and
actual accomplishment of any other targeted
goals, as reasonably determined by the
Compensation Committee of the Board (the
"Actual Bonus," and the greatest of (a), (b)
and (c) the "Highest Bonus"); and
<PAGE>
Y = the number of days elapsed in such year
preceding the date of termination divided by 365;
d. pay Executive's estate, within 30 days after the
date of death, the amount described in clause (iv)
of the first sentence of the second to last paragraph
of Section 7.D.;
e. provide those death benefits to which Executive is
entitled at the date of Executive's death under any
death benefit plans, policies or arrangements of the
Corporation which, following a Change in
Control, shall be at least comparable to those in
effect at any time during the ninety-day period
immediately preceding the Change in Control or, if
more favorable to Executive and/or Executive's
designees, as in effect on the date of Executive's
death with respect to other key executives and their
designees; and
f. provide to Executive's family the welfare benefits, or
payment in lieu of welfare benefits, described in clause
(iii) of the first sentence, and the second sentence, of
the second to last paragraph of Section 7.D.
In addition, upon a termination of Executive in accordance
with this Section 7.A:
g. all non-vested stock options, and any other non-
vested stock or stock-based awards issued by the
Corporation or any subsidiary of the Corporation,
shall immediately become fully vested, non-
forfeitable and exercisable; provided that, in the
case of options or awards granted by Triarc
Beverage Holdings Corp. ("TBHC"), this clause g.
shall not be operative unless and until such vesting
would not constitute a default or an event of
default, or result in a mandatory prepayment
requirement, under the terms of any agreement for
indebtedness for borrowed money (each, a
"Financing Limitation"); and
<PAGE>
h. all Executive's stock options (A) granted on or
after February 24, 2000 by the Corporation or any
of its subsidiaries, or (B) granted by the
Corporation before February 24, 2000 (including
those previously vested) if the exercise price
thereof is greater than the closing price of the
Corporation's common stock on the New York
Stock Exchange on February 24, 2000, shall
remain exercisable until the earlier of (i) one year
following termination or (ii) their respective stated
expiration dates; provided that in the case of
options or awards described in subclause (A) of
this clause h. which are granted by TBHC, this
clause h. shall be subject to any applicable
Financing Limitation.
B. Disability. If Executive's employment is terminated by
reason of Executive's disability, the Corporation shall:
a. pay Executive, in a lump sum in cash within 30
days following the Disability Effective Date, the
amounts described in clauses a and d of Section
7.D.;
b. pay Executive's estate the amounts described in
clauses b and c of Section 7.D. at the time or times
determined by the Corporation, but in no event
less rapidly than substantially equal annual
installments beginning no later than 30 days after
the Disability Effective Date;
c. pay Executive the Pro-Rata Bonus for the Fiscal Year in
which the Disability Effective Date occurs, to be paid
to Executive in a lump sum in cash at the time Executive
would have been entitled to receive his Bonus for such
Fiscal Year;
d. pay Executive, within 30 days after the Disability
Effective Date, the amount described in clause (iv)
of the first sentence of the second to last paragraph
of Section 7.D.;
e. provide those disability benefits to which
Executive is entitled at the Disability Effective
Date under any disability benefit plans, policies or
<PAGE>
arrangements of the Corporation which, following a
Change in Control, shall be at least comparable to those
in effect at any time during the ninety-day period
immediately preceding the Change in Control or, if more
favorable to Executive and/or Executive's designees, as
in effect on the Disability Effective Date with respect
to other key executives and their designees; and
f. provide to Executive and his family the benefits, or
payment in lieu of benefits, described in clause (iii)
of the first sentence, and the second sentence, of
the second to last paragraph of Section 7.D.
In addition, upon a termination of Executive in accordance
with this Section 7.B:
g. all non-vested stock options, and any other non-
vested stock or stock-based awards issued by the
Corporation or any subsidiary of the Corporation,
shall immediately become fully vested, non-
forfeitable and exercisable; provided that, in the
case of options or awards granted by TBHC, this
clause g. shall be subject to any applicable
Financing Limitation; and
h. all Executive's stock options (A) granted on or
after February 24, 2000 by the Corporation or any
of its subsidiaries, or (B) granted by the
Corporation before February 24, 2000 (including
those previously vested) if the exercise price
thereof is greater than the closing price of the
Corporation's common stock on the New York
Stock Exchange on February 24, 2000, shall
remain exercisable until the earlier of (i) one year
following termination or (ii) their respective stated
expiration dates; provided that in the case of
options or awards described in subclause (A) of
this clause h. which are granted by TBHC, this
clause h. shall be subject to any applicable
Financing Limitation.
C. Cause or Without Good Reason. If Executive's
employment shall be terminated (i) by the Corporation
with Cause, or (ii) by Executive without Good Reason,
<PAGE>
the Corporation shall pay Executive his Base Salary through
the date of termination and any accrued vacation pay, and
shall have no further obligations to Executive under this
Agreement.
D. Without Cause or With Good Reason. If Executive's employment
shall be terminated (i) by the Corporation without Cause, or
(ii) by Executive with Good Reason, the Corporation shall pay
to Executive in a lump sum in cash within ten (10) days after
the date of termination the aggregate of the following
amounts:
a. to the extent not theretofore paid, Executive's Base
Salary through the date of termination plus any
Bonus amounts which have become payable and
any accrued vacation pay;
b. Executive's Base Salary for the remainder of the
Employment Period;
c. five times the Highest Bonus; provided that, for
this purpose, the Highest Bonus shall be calculated
using only the Look-Back Bonus and the Target
Bonus; and
d. five times the sum of employer contributions paid or
accrued on Executive's behalf to any qualified or
nonqualified defined contribution retirement plans
during the calendar year immediately preceding
termination.
In addition, upon a termination of Executive in
accordance with this Section 7.D, the Corporation shall (i)
pay Executive the Pro-Rata Bonus for the Fiscal Year in which
the termination date occurs, to be paid to Executive in a lump
sum in cash at the time Executive would have been entitled to
receive his Bonus for such Fiscal Year, (ii) if the Actual
Bonus for the Fiscal Year in which the termination date
occurs, as calculated following the end of such Fiscal Year,
exceeds the Highest Bonus as determined in accordance with
clause c. immediately above, pay Executive five times the
amount by which such Actual Bonus exceeds such Highest Bonus
in a lump sum in cash at the time Executive would have been
entitled to receive his Bonus for such Fiscal Year; (iii)
continue to
<PAGE>
provide welfare benefits to Executive and his family for the
remainder of the Employment Period at least equal to those
which were being provided to them in accordance with Section
5.C at any time within the six-month period ending on the date
of termination and (iv) credit Executive with five additional
years of age and service under each qualified and nonqualified
defined benefit pension plan of the Corporation in which
Executive participates at the time of termination; provided
that in the case of a qualified defined benefit pension plan,
the present value of the additional benefit Executive would
have accrued if he had been credited with such additional
years of age and service (computed using the actuarial
assumptions used for purposes of the most recent actuarial
report in respect of such plan) will be paid in a lump sum in
cash within thirty (30) days after the date of termination;
further provided that, in computing such additional benefit,
Executive shall be deemed to earn compensation for such
additional five- year period at the same rate as in the
calendar year immediately preceding such termination. To the
extent that the benefits provided for in clause (iii) are not
permissible after termination of employment under the terms of
the benefit plans of the Corporation then in effect, the
Corporation shall pay to Executive in a lump sum in cash
within thirty (30) days after the date of termination an
amount equal to the after-tax cost to Executive of acquiring
on a non-group basis, for the remainder of the Employment
Period, those benefits lost to Executive and/or Executive's
family as a result of Executive's termination.
In addition, upon a termination of Executive in accordance
with this Section 7.D (including for this purpose a
termination at the end of the Employment Period following
delivery by the Corporation to Executive of a notice not to
extend the Employment Period pursuant to the proviso in
Section 1 hereof):
e. all non-vested stock options, and any other non- vested
stock or stock-based awards issued by the Corporation or
any subsidiary of the Corporation, shall immediately
become fully vested, non- forfeitable and exercisable;
provided that, in the case of options or awards granted
by TBHC, this
<PAGE>
clause e. shall be subject to any applicable
Financing Limitation; and
f. all Executive's stock options (A) granted on or
after February 24, 2000 by the Corporation or any
of its subsidiaries, or (B) granted by the
Corporation before February 24, 2000 (including
those previously vested) if the exercise price
thereof is greater than the closing price of the
Corporation's common stock on the New York
Stock Exchange on February 24, 2000, shall
remain exercisable until the earlier of (i) one year
following termination or (ii) their respective stated
expiration dates; provided that in the case of
options or awards described in subclause (A) of
this clause f. which are granted by TBHC, this
clause f. shall be subject to any applicable
Financing Limitation.
8. Non-Exclusivity of Rights. Nothing in this Agreement shall prevent or
limit Executive's continuing or future participation in any benefit, bonus,
incentive (whether cash or equity based, or otherwise) or other plan or program
provided by the Corporation or any of its affiliated companies and for which
Executive may qualify, nor shall anything herein limit or otherwise affect such
rights as Executive may have under any stock option or other agreements with the
Corporation or any of its affiliated companies. Amounts which are vested
benefits or which Executive is otherwise entitled to receive under any plan or
program of the Corporation or any of its affiliated companies at or subsequent
to the date on which Executive's employment is terminated shall be payable in
accordance with such plan or program. Anything herein to the contrary
notwithstanding, if Executive becomes entitled to payments pursuant to Section
7.D hereof, the Executive agrees to waive payments under any severance plan or
program of the Corporation.
9. Noncompetition; Nondisclosure; Nonsolicitation.
A. Executive hereby covenants and agrees that, during the
period of Executive's employment with the Corporation
and for one year thereafter (the "Covenant Period"), he
shall not, without the prior written consent of the
Corporation, engage in Competition (as defined below)
with the Corporation. For purposes of this Agreement, if
Executive takes any of the following actions he shall be
engaged in "Competition": engaging in or carrying on,
directly or indirectly, any enterprise, whether as an
<PAGE>
advisor, principal, agent, partner, officer, director,
employee, stockholder, associate or consultant to any person,
partnership, corporation or any other business entity, that is
principally engaged in any business operating within the
United States of America, which is involved in business
activities which are the same as, similar to or in competition
with the principal business activities carried on by the
Corporation, or being definitely planned by the Corporation,
at the time of the termination of the Executive's employment;
provided, however, that "Competition" shall not include (i)
the passive ownership of securities in any public enterprise
and exercise of rights appurtenant thereto, so long as such
securities represent no more than five percent of the voting
power of all securities of such enterprise or (ii) the
indirect ownership of securities through ownership of shares
in a registered investment company.
B. Executive shall not, without the Corporation's prior
written consent, disclose or use any non-public
confidential information of or relating to the Corporation,
whether disclosed to or learned by Executive during the
course of his employment or otherwise, so long as such
information is not publicly known or available, except for
such disclosures as are required by law or in connection
with Executive's performance of services to the
Corporation hereunder. Executive further agrees that he
shall not make any statements at any time that disparage
the reputation of the Corporation or any of its affiliates.
For purposes of this Section 9, the term "affiliate" of the
Corporation means the Board, any and all Committees of
the Board (the "Committees") and any and all individual
members of either the Board or any of the Committees, in
their capacity as such, and any employee or officer of the
Corporation.
C. Executive hereby covenants and agrees that, during the
Covenant Period, he shall not attempt to influence,
persuade or induce, or assist any other person in so
influencing, persuading or inducing, (i) any customer of
the Corporation to give up, or to not commence, a
business relationship with the Corporation and (ii) if
Executive's employment was terminated by the
Corporation with Cause or by Executive without Good
<PAGE>
Reason, any employee of the Corporation (other than Nelson
Peltz) to cease such employment.
D. Executive agrees that all processes, technologies, designs
and inventions ("Inventions"), including new
contributions, improvements, ideas and discoveries,
whether patentable or not, conceived, developed, invented
or made by him during the Employment Period shall
belong to the Corporation, provided that such Inventions
grew out of Executive's work for the Corporation, are
related in any manner to the business (commercial or
experimental) of the Corporation or are conceived or
made on the Corporation's time or with the use of the
Corporation's facilities or materials. Executive shall
further: (a) promptly disclose such Inventions to the
Corporation; (b) assign to the Corporation, without
additional compensation, all patent and other rights to
such Inventions for the United States and foreign
countries; (c) sign all papers necessary to carry out the
foregoing; and (d) give testimony in support of the status
of Executive as the inventor of such Inventions.
Executive agrees that he will not assert any rights to any
Invention as having been made or acquired by him prior to
the Effective Date, except for Inventions, if any, disclosed
to the Corporation in writing prior to the Effective Date.
E. Executive acknowledges and agrees that the remedy at law
available to the Corporation for breach of any of his
obligations under Section 9.A, B, C or D of this
Agreement would be inadequate, and that damages
flowing from such a breach may not readily be susceptible
to being measured in monetary terms. Accordingly,
Executive acknowledges, consents and agrees that, in
addition to any other rights or remedies which the
Corporation may have at law, in equity or under this
Agreement, upon adequate proof of his violation of any
provision of Section 9 of this Agreement, the Corporation
shall be entitled to immediate injunctive relief and may
obtain a temporary order restraining any threatened or
further breach, without the necessity of proof of actual
damage.
<PAGE>
F. Executive acknowledges and agrees that the covenants set
forth in Section 9A, B, C and D of this Agreement are
reasonable and valid in geographical and temporal scope
and in all other respects. If any of such covenants or such
other provisions of this Agreement are found to be invalid
or unenforceable by a final determination of a court of
competent jurisdiction (i) the remaining terms and
provisions hereof shall be unimpaired and (ii) the invalid
or unenforceable term or provision shall be deemed
replaced by a term or provision that is valid and
enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or
provision.
G. Executive understands that the provisions of Section 9A,
B, C and D of this Agreement may limit his ability to earn
a livelihood in a business similar to the business of the
Corporation but he nevertheless agrees and hereby
acknowledges that (i) such provisions do not impose a
greater restraint than is necessary to protect the goodwill
or other business interests of the Corporation, (ii) such
provisions contain reasonable limitations as to time and
scope of activity to be restrained, (iii) such provisions are
not harmful to the general public, (iv) such provisions are
not unduly burdensome to Executive, and (v) the
consideration provided hereunder is sufficient to
compensate Executive for the restrictions contained in
Section 9 of this Agreement. In consideration of the
foregoing and in light of Executive's education, skills and
abilities, Executive agrees that he shall not assert that, and
it should not be considered that, any provisions of Section
9 otherwise are void, voidable or unenforceable or should
be voided or held unenforceable.
H. If Executive violates any of the restrictions contained in
Section 9A, B or C of this Agreement, the restrictive period
shall not run in favor of the Executive from the time of the
commencement of any such violation until such time as such
violation shall be cured by the Executive to the satisfaction
of the Corporation.
<PAGE>
10. Certain Additional Payments by the Corporation.
A. If it is determined (as hereafter provided) that any
payment or distribution by the Corporation to or for the
benefit of Executive, whether paid or payable or
distributed or distributable pursuant to the terms of this
Agreement or otherwise pursuant to or by reason of any
other agreement, policy, plan, program or arrangement,
including without limitation any stock option, stock
appreciation right or similar right, or the lapse or
termination of any restriction on or the vesting or
exercisability of any of the foregoing (a "Payment"),
would be subject to the excise tax imposed by
Section 4999 of the Code (or any successor provision
thereto) or to any similar tax imposed by state or local
law, or any interest or penalties with respect to such
excise tax (such tax or taxes, together with any such
interest and penalties, are hereafter collectively referred to
as the "Excise Tax"), then Executive will be entitled to
receive an additional payment or payments (a "Gross-Up
Payment") in an amount such that, after payment by
Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including any Excise
Tax, imposed upon the Gross-Up Payment, Executive
retains an amount of the Gross-Up Payment equal to the
Excise Tax imposed upon the Payments.
B. Subject to the provisions of Section 10.F hereof, all
determinations required to be made under this Section 10,
including whether an Excise Tax is payable by Executive
and the amount of such Excise Tax and whether a Gross-
Up Payment is required and the amount of such Gross-Up
Payment, will be made by a nationally recognized firm of
certified public accountants (the "Accounting Firm")
selected by Executive in his sole discretion. Executive
will direct the Accounting Firm to submit its
determination and detailed supporting calculations to both
the Corporation and Executive within 15 calendar days
after the date of the Change in Control or the date of
Executive's termination of employment, if applicable, and
any other such time or times as may be requested by the
Corporation or Executive. If the Accounting Firm
determines that any Excise Tax is payable by Executive,
the Corporation will pay the required Gross-Up Payment
to Executive within five business days after receipt of such
<PAGE>
determination and calculations. If the Accounting Firm
determines that no Excise Tax is payable by Executive, it
will, at the same time as it makes such determination, furnish
Executive with an opinion that he has substantial authority
not to report any Excise Tax on his federal, state, local
income or other tax return. Any determination by the
Accounting Firm as to the amount of the Gross-Up Payment will
be binding upon the Corporation and Executive. As a result of
the uncertainty in the application of Section 4999 of the Code
(or any successor provision thereto) and the possibility of
similar uncertainty regarding applicable state or local tax
law at the time of any determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments which will
not have been made by the Corporation should have been made
(an "Underpayment"), consistent with the calculations required
to be made hereunder. In the event that the Corporation
exhausts or fails to pursue its remedies pursuant to Section
10.F hereof and Executive thereafter is required to make a
payment of any Excise Tax, Executive will direct the
Accounting Firm to determine the amount of the Underpayment
that has occurred and to submit its determination and detailed
supporting calculations to both the Corporation and Executive
as promptly as possible. Any such Underpayment will be
promptly paid by the Corporation to, or for the benefit of,
Executive within five business days after receipt of such
determination and calculations.
C. The Corporation and Executive will each provide the
Accounting Firm access to and copies of any books,
records and documents in the possession of the
Corporation or Executive, as the case may be, reasonably
requested by the Accounting Firm, and otherwise
cooperate with the Accounting Firm in connection with
the preparation and issuance of the determination
contemplated by Section 10.B hereof.
D. The federal, state and local income or other tax returns filed
by Executive will be prepared and filed on a consistent basis
with the determination of the Accounting Firm with respect to
the Excise Tax payable by Executive. Executive will make
proper payment of the amount of any Excise Tax, and at the
request of the Corporation, provide to the Corporation true
and correct copies (with any
<PAGE>
amendments) of his federal income tax return as filed with the
Internal Revenue Service and corresponding state and local tax
returns, if relevant, as filed with the applicable taxing
authority, and such other documents reasonably requested by
the Corporation, evidencing such payment. If prior to the
filing of Executive's federal income tax return, or
corresponding state or local tax return, if relevant, the
Accounting Firm determines that the amount of the Gross-Up
Payment should be reduced, Executive will within five business
days pay to the Corporation the amount of such reduction.
E. The fees and expenses of the Accounting Firm for its
services in connection with the determinations and
calculations contemplated by Sections 10.B and D hereof
will be borne by the Corporation. If such fees and
expenses are initially advanced by Executive, the
Corporation will reimburse Executive the full amount of
such fees and expenses within five business days after
receipt from Executive of a statement therefor and
reasonable evidence of his payment thereof.
F. Executive will notify the Corporation in writing of any
claim by the Internal Revenue Service that, if successful,
would require the payment by the Corporation of a Gross-
Up Payment. Such notification will be given as promptly
as practicable but no later than 10 business days after
Executive actually receives notice of such claim and
Executive will further apprise the Corporation of the
nature of such claim and the date on which such claim is
requested to be paid (in each case, to the extent known by
Executive). Executive will not pay such claim prior to the
earlier of (i) the expiration of the 30-calendar-day period
following the date on which he gives such notice to the
Corporation and (ii) the date that any payment of amount
with respect to such claim is due. If the Corporation
notifies Executive in writing prior to the expiration of
such period that it desires to contest such claim, Executive
will:
(vi) provide the Corporation with any written records or
documents in his possession relating to such claim
reasonably requested by the Corporation;
<PAGE>
(vii) take such action in connection with contesting such
claim as the Corporation will reasonably request in
writing from time to time, including without limitation
accepting legal representation with respect to such
claim by an attorney competent in respect of the subject
matter and reasonably selected by the Corporation;
(viii)cooperate with the Corporation in good faith in
order effectively to contest such claim; and
(ix) permit the Corporation to participate in any
proceedings relating to such claim;
provided, however, that the Corporation will bear and pay
directly all costs and expenses (including interest and
penalties) incurred in connection with such contest and will
indemnify and hold harmless Executive, on an after- tax basis,
for and against any Excise Tax or income tax, including
interest and penalties with respect thereto, imposed as a
result of such representation and payment of costs and
expenses. Without limiting the foregoing provisions of this
Section 10.F, the Corporation will control all proceedings
taken in connection with the contest of any claim contemplated
by this Section 10.F and, at its sole option, may pursue or
forego any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in respect
of such claim (provided that Executive may participate therein
at his own cost and expense) and may, at its option, either
direct Executive to pay the tax claimed and sue for a refund
or contest the claim in any permissible manner, and Executive
agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction
and in one or more appellate courts, as the Corporation will
determine; provided, however, that if the Corporation directs
Executive to pay the tax claimed and sue for a refund, the
Corporation will advance the amount of such payment to
Executive on an interest-free basis and will indemnify and
hold Executive harmless, on an after-tax basis, from any
Excise Tax or income tax, including interest or penalties with
respect thereto, imposed with respect to such advance; and
provided further, however, that any extension of the statute
of limitations relating to payment of taxes for the
<PAGE>
taxable year of Executive with respect to which the contested
amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Corporation's control of
any such contested claim will be limited to issues with
respect to which a Gross-Up Payment would be payable hereunder
and Executive will be entitled to settle or contest, as the
case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
G. If, after the receipt by Executive of an amount advanced
by the Corporation pursuant to Section 10.F hereof,
Executive receives any refund with respect to such claim,
Executive will (subject to the Corporation's complying
with the requirements of Section 10.F hereof) promptly
pay to the Corporation the amount of such refund
(together with any interest paid or credited thereon after
any taxes applicable thereto). If, after the receipt by
Executive of an amount advanced by the Corporation
pursuant to Section 10.F hereof, a determination is made
that Executive will not be entitled to any refund with
respect to such claim and the Corporation does not notify
Executive in writing of its intent to contest such denial or
refund prior to the expiration of 30 calendar days after
such determination, then such advance will be forgiven
and will not be required to be repaid and the amount of
such advance will offset, to the extent thereof, the amount
of Gross-Up Payment required to be paid pursuant to this
Section 10.
11. Successors.
A. This Agreement is personal to Executive and without the prior
written consent of the Corporation shall not be assignable by
Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and
be enforceable by Executive's legal representatives.
B. This Agreement shall inure to the benefit of and be
binding upon the Corporation and its successors.
C. The Corporation will require any successor (whether
direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or
<PAGE>
assets of the Corporation to expressly assume and agree to
perform this Agreement in the same manner and to the same
extent that the Corporation would be required to perform it if
no such succession had taken place. As used in this Agreement,
"Corporation" shall mean the Corporation as hereinbefore
defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement
by operation of law, or otherwise.
12. Miscellaneous.
A. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York
without reference to principles of conflict of laws. The
parties hereto agree that exclusive jurisdiction of any
dispute regarding this Agreement shall be the state or
federal courts located in New York, New York. The
Corporation shall directly pay the fees and expenses of
counsel and other experts retained by Executive in
enforcing this Agreement, as they may be incurred,
provided that Executive shall be required to reimburse the
Corporation for any amounts so paid unless at least one
material matter in dispute is decided in favor of
Executive.
B. In the event of any termination of Executive's employment
hereunder, Executive shall be under no obligation to seek
other employment or otherwise mitigate the obligations of
the Corporation under this Agreement, and there shall be
no offset against amounts due Executive under this
Agreement on account of amounts purportedly owing by
Executive to the Corporation. Any amounts due to
Executive under this Agreement upon termination of
employment are considered to be reasonable by the
Corporation and are not in the nature of a penalty.
C. The Corporation will indemnify Executive, to the maximum
extent permitted by applicable law, against all costs, charges
and expenses incurred or sustained by him in connection with
any action, suit or proceeding to which he may be made a party
by reason of his being an officer, director or employee of the
Corporation or of any subsidiary or affiliate of the
Corporation.
<PAGE>
D. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect.
E. This Agreement may not be amended or modified
otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal
representatives.
F. All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party
or by registered or certified mail, return receipt requested,
postage prepaid, or by facsimile or nationally recognized
overnight courier service, addressed as follows:
If to Executive:
Peter W. May
895 Park Avenue
New York, New York 10021
Facsimile: (212) 472-9174
If to the Corporation:
Triarc Companies, Inc.
280 Park Avenue
New York, New York 10017
Attention: General Counsel
Facsimile: (212) 451-3216
in either case, with a copy to:
Paul, Weiss, Rifkind, Wharton &
Garrison
1285 Avenue of the Americas
New York, New York 10019
Attention: Neale M. Albert, Esq.
Facsimile: (212) 757-3990
or to such other address as either party shall have furnished
to the other in writing in accordance herewith. Notice and
communications shall be effective when actually received by
the addressee.
<PAGE>
G. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
H. The Corporation may withhold from any amounts payable under
this Agreement such Federal, state or local taxes as shall be
required to be withheld pursuant to any applicable law or
regulation.
I. This Agreement contains the entire understanding of the
Corporation and Executive with respect to the subject
matter hereof.
IN WITNESS WHEREOF, Executive has hereunto set his hand and the
Corporation has caused this Agreement to be executed in its name on its behalf,
all as of the day and year first above written.
PETER W. MAY
--------------------------------------
Peter W. May
TRIARC COMPANIES, INC.
By: BRIAN L. SCHORR
----------------------------------
Name: Brian L. Schorr
Title: Executive Vice President
and General Counsel
<PAGE>
Exhibit 10.3
EMPLOYMENT AGREEMENT, made as of February 24, 2000 (the
"Effective Date"), between TRIARC COMPANIES, INC. ("Triarc") and John L.
Barnes, Jr. (the "Employee").
1. Employment, Duties and Acceptance
1.1. Triarc hereby employs the Employee, for the Term (as
hereinafter defined) to render exclusive and full-time services to Triarc as a
senior executive officer of Triarc with the title of Executive Vice President
and Chief Financial Officer and, in connection therewith, to perform such duties
commensurate with such office, as shall be assigned to him by the Chairman and
Chief Executive Officer or the President and Chief Operating Officer.
1.2. The Employee hereby accepts such employment and agrees to
render the exclusive, full-time services described above. The Employee further
agrees to accept election and to serve during all or any part of the Term as an
officer, director or representative of any subsidiary or affiliate of Triarc,
without any compensation therefor other than that specified in this Agreement.
Employee may (i) serve on corporate, civic, professional, educational,
philanthropic or charitable boards or committees and (ii) deliver lectures or
fulfill speaking engagements, as long as such activities do not significantly
interfere with the performance of Employee's responsibilities hereunder.
1.3. The duties to be performed by the Employee hereunder
shall be performed primarily in New York, New York, subject to reasonable travel
requirements on behalf of Triarc. Triarc shall not relocate the Employee outside
of New York, New York without his prior written consent. The Employee will be
entitled to such amounts of paid vacation time as are comparable to that
provided to other senior executives of Triarc (but in any event, not less than
four weeks per annum).
2. Term of Employment
The term of the Employee's employment under this Agreement
(the "Term") shall commence as of the Effective Date, and, subject to Section 4,
shall end on the third anniversary of the Effective Date; provided, however,
that the Term shall automatically be extended for successive one-year periods on
each annual anniversary of the Effective Date unless, not later than 180 days
preceding the date of any such extension, Triarc or the Employee shall have
given written notice to the other party that it does not wish to further extend
the Term (the Term and, unless the period of employment is not so extended (as
provided for in the above proviso), such additional period(s) of employment, are
collectively referred to herein as the "Term"). Each successive 12 month period
<PAGE>
(commencing on the date hereof) during the Term of this Agreement is sometimes
referred to herein as a "Contract Year."
3. Compensation
3.1. During the Term, Triarc agrees to pay to the Employee as
his salary (the "Salary") for the services to be performed by him as provided
herein compensation at the rate of $475,000 per year, payable in equal monthly
installments or more frequently, less such deductions or amounts to be withheld
as shall be required by applicable law and regulations. Triarc may increase, but
not decrease the Salary from time to time during the Term.
3.2. In addition to the Salary, the Employee shall also be
eligible during each of Triarc's fiscal years (a "Fiscal Year") throughout the
Term to receive bonuses from time to time as appropriate, in the sole discretion
of Triarc, and to participate in the 1999 Executive Bonus Plan. The aggregate of
such bonus payments with respect to any such fiscal year shall be referred to
herein as that fiscal year's "Bonus".
3.3. Triarc agrees to reimburse the Employee for or to pay at
the Employees' direction all expenses reasonably incurred by the Employee in the
course of performing his duties under this Agreement. The Employee agrees to
submit such written documentation as Triarc may reasonably request in order to
verify the expenditure of such funds or the incurrence of such expenses to
Triarc's reasonable satisfaction, the submission of which shall be a condition
of reimbursement for or payment of same.
3.4. The Employee shall be entitled to all rights and benefits
for which he shall be eligible under any long or short-term management incentive
plan (whether cash or equity based, or otherwise), retirement, retirement
savings, profit-sharing, pension or welfare benefit plan, life, disability,
health, dental, hospitalization and other forms of insurance, and all other
so-called "fringe" benefits or perquisites which Triarc shall from time to time
provide for its senior executives. Without limitation, Triarc shall, with
respect to payments made under this Agreement, make maximum matching
contributions under Triarc's 401(k) plan to the extent permitted by applicable
law and such plan.
3.5. The Employee will cooperate in assisting Triarc in
obtaining a key man life insurance policy on the life of Employee, the
beneficiary of which shall be named by Triarc, including completing all
necessary application materials and submitting to one or more physical
examinations with a physician of Triarc's choice.
<PAGE>
4. Termination
4.1. If the Employee shall die during the Term, this Agreement
shall terminate, except that the Employee's estate shall be entitled to receive
a lump sum payment in cash within 30 days of the date of death, of the following
amounts:
a. to the extent not theretofore paid, Employee's then
current Salary through the date of termination plus
any Bonus amounts which have become payable and
any accrued vacation pay;
b. two and one-half (2-1/2) times the sum of employer
contributions paid or accrued on Employee's behalf to
any qualified or nonqualified defined contribution
retirement plans during the calendar year immediately
preceding termination.
In addition, upon a termination of the Employee in accordance
with this Section 4.1, Triarc shall pay the Employee's estate at the time or
times determined by Triarc, but in no event less rapidly than three
substantially equal annual installments beginning no later than 30 days after
the date of death the following amounts: (i) Employee's then current Salary for
the remainder of the Term (but in no event for more than two and one-half
(2-1/2) years from the date of termination) and (ii) two and one-half (2-1/2)
times the Bonus Amount (as hereinafter defined). Furthermore, upon termination
of the Employee in accordance with this Section 4.1, Triarc shall (i) pay the
Employee's estate, in a lump sum in cash at the time the Employee would have
been entitled to receive his Bonus for the Fiscal Year in which his death
occurs, the Pro-Rata Bonus (as hereinafter defined) for such Fiscal Year; (ii)
continue to provide welfare benefits to the Employee and his family for the
remainder of the Term at least equal to those which were being provided to them
at any time within the six-month period ending on the date of termination and
(iii) credit the Employee with two and one-half (2-1/2) additional years of age
and service under each of Triarc's qualified and nonqualified defined benefit
pension plans in which the Employee participates at the time of termination;
provided that in the case of a qualified defined benefit pension plan, the
present value of the additional benefit the Employee would have accrued if he
had been credited with such additional years of age and service (computed using
the actuarial assumptions used for purposes of the most recent actuarial report
in respect of such plan) will be paid in a lump sum in cash within thirty (30)
days after the date of termination; further provided that, in computing such
additional benefit, the Employee shall be deemed to earn compensation for such
additional two and one-half (2-1/2) year period at the same rate as in the
calendar year immediately preceding such termination. To the extent that the
benefits provided for in clause (ii) are not permissible after termination of
employment under the terms of Triarc's benefit plans in effect, Triarc shall pay
to the Employee's estate in a lump sum in cash within thirty (30) days after
<PAGE>
the date of termination an amount equal to the after-tax cost of acquiring on a
non-group basis, for the remainder of the Term, those benefits lost to the
Employee and/or to the Employee's family as a result of the Employee's
termination. Employee's estate shall also be entitled to receive those
death benefits to which the Employee is entitled as of the date of the
Employee's death under any death benefit plans, policies or arrangements of
Triarc.
"Bonus Amount" shall mean: the greatest of (a) the largest
Bonus paid to Employee in respect of the two Fiscal Years preceding the date of
termination minus, in the case of any Bonus being used for purposes of
calculating this clause (a) with respect to Fiscal Year 1998 or 1999, $175,000
(the "Look-Back Bonus"), (b) the Bonus which would have been paid to Employee in
respect of the Fiscal Year in which termination occurs if Triarc attained its
budgeted financial performance, and accomplished any other targeted goals for
such year, as reasonably determined by the Compensation Committee of the Board
of Directors (the "Target Bonus") or (c) the Bonus which would have been paid to
the Employee in respect of the Fiscal Year in which termination occurs based on
Triarc's actual performance, and actual accomplishment of any other targeted
goals, as reasonably determined by the Compensation Committee of the Board of
Directors (the "Actual Bonus").
"Pro-Rata Bonus" shall mean: the product of (x) the Bonus
Amount and (y) the number of days elapsed in such year proceeding the date of
termination divided by 365.
4.2. Triarc may terminate the Term of the Employee's
employment hereunder after having established Employee's Disability (pursuant to
the definition of "Disability" set forth below), by giving to Employee written
notice of its intention to terminate Employee's employment. In such a case,
Employee's employment with Triarc shall terminate effective on the 180th day
after receipt of such notice (the "Disability Effective Date"), provided that,
within 180 days after such receipt, Employee shall not have returned to full
performance of Employee's duties. For purposes of this Agreement, "Disability"
means personal injury, illness or other cause which, after the expiration of not
less than 180 days after its commencement, renders Employee unable to perform
his duties with substantially the same level of quality as immediately prior to
such incident and such disability is determined to be total and permanent by a
physician selected by Triarc or its insurers and acceptable to Employee or
Employee's legal representative (such agreement as to acceptability not to be
withheld unreasonably).
Notwithstanding such termination, the Employee shall be entitled to the
following amounts:
<PAGE>
(a) the amounts described in clauses (a) and (b) of the first
paragraph of Section 4.1, paid in a lump sum in cash within 30 days of the date
of such termination;
(b) the Pro-Rata Bonus for the Fiscal Year in which the effective
date of the termination occurs, paid in a lump sum in cash at the time the
Employee would have been entitled to receive his Bonus for such Fiscal Year;
(c) the amount described in clause (iii) of the second sentence of
the second full paragraph of Section 4.1 and to receive the benefits, or payment
in lieu of benefits, described in clause (ii) of the second sentence and third
sentence, of the second full paragraph of Section 4.1, paid in a lump sum in
cash within 30 days of the date of such termination. In addition, to the extent
permitted by any plan, the Employee shall be entitled to receive any disability
payments to which he is eligible pursuant to any plan referred to in Section 3.4
above; and
(d) the amounts described in clauses (i) and (ii) of the first
sentence of the second full paragraph of Section 4.1 payable to the Employee at
the time or times determined by the Corporation, but in no event less rapidly
then three substantially equal installments beginning on the 30th day after the
termination of the Term under this Section 4.2.
4.3. This Agreement may be terminated by Triarc prior to its
scheduled termination date only for Cause (as defined below). If this Agreement
shall be lawfully terminated by Triarc for Cause during the Term, Triarc's
obligation to pay compensation or other payments hereunder or otherwise to or
for the benefit of the Employee shall cease on the effective date of such
termination; provided, however, that within 30 days of the effectiveness of such
termination, Triarc shall pay the Employee all Salary, business expenses,
amounts payable under any plan or benefit program or other amounts that were
accrued or incurred but unpaid or unreimbursed (including vacation time) at the
effective date of such termination. As used herein the term "Cause" shall mean
only (i) the willful and continued failure of Employee to perform substantially
his duties with Triarc (other than any such failure resulting from Employee's
incapacity due to physical or mental illness or any such failure subsequent to
Employee being delivered a Notice of Termination (as defined in Section 12)
without Cause by Triarc or Employee delivering a Notice of Termination for Good
Reason to Triarc) after a written demand for substantial performance is
delivered to Employee by the Board of Directors which specifically identifies
the manner in which the Board believes that Employee has not substantially
performed Employee's duties and Employee has failed to cure such failure to the
reasonable satisfaction of the Board, (ii) the willful engaging by Employee in
gross misconduct which results in substantial damage to Triarc or its
affiliates, or (iii) Employee's conviction (by a court of competent
jurisdiction, not subject to further appeal) of, or pleading guilty to, a
felony. For purpose of this Section 4.3, no act or failure to act by Employee
shall be considered "willful" unless done or omitted to be done by Employee
<PAGE>
in bad faith and without reasonable belief that Employee's action or omission
was in the best interests of Triarc or its affiliates. Any act, or failure to
act, based upon authority given pursuant to a resolution duly adopted by the
Board or based upon the advice of counsel for Triarc shall be conclusively
presumed to be done, or omitted to be done, by Employee in good faith and in the
best interests of Triarc. Cause shall not exist unless and until Triarc has
delivered to Employee, along with the Notice of Termination for Cause, a copy
of a resolution duly adopted by three-quarters (3/4) of the entire Board
(excluding Employee if Employee is a Board member) at a meeting of the Board
called and held for such purpose (after reasonable notice to Employee and an
opportunity for Employee, together with counsel, to be heard before the
Board), finding that in the good faith opinion of the Board an event set
forth in clauses (i) - (iii) above has occurred and specifying the particulars
thereof in detail. The Board must notify Employee of any event constituting
Cause within ninety (90) days following the Board's knowledge of its existence
or such event shall not constitute Cause under this Agreement.
4.4. This Agreement shall, at the option of the Employee, be
deemed to have been terminated by Triarc without Cause, following a Change in
Control (as defined herein). The term "Change in Control" shall mean:
(i) the acquisition by any person of more than 50% of
the combined voting power of the outstanding securities entitled to
vote generally in the election of directors of Triarc, followed by,
without the prior consent of the Employee, any meaningful diminution
in the Employee's duties or authority in effect immediately prior to
such acquisition;
(ii) a majority of the Board of Directors of Triarc
shall be individuals who are not nominated by the Board of Directors
of Triarc, followed by, without the prior consent of the Employee,
any meaningful diminution in the Employee's duties or authority in
effect immediately prior to such nomination; or
(iii) neither Messrs. Nelson Peltz nor Peter W. May
being Chairman and Chief Executive Officer and President and Chief
Operating Officer, respectively, of Triarc.
The ownership or acquisition of any portion of the combined voting power of
Triarc by DWG Acquisition Group, L.P., Nelson Peltz or Peter W. May or by any
person affiliated with such persons shall in no event constitute a Change in
Control. The merger, consolidation or sale of assets of Triarc or any subsidiary
of Triarc with or to any corporation or entity controlled by DWG Acquisition
Group, L.P., Nelson Peltz or Peter W. May or by any person affiliated with such
persons shall in no event constitute a Change in Control.
<PAGE>
4.5. In the event of the termination of this Agreement in
accordance with Sections 4.1, 4.2 or 4.6, (A) all non-vested stock options and
any other non-vested stock or stock-based awards (whether issued by Triarc or a
subsidiary of Triarc) then owned by the Employee shall vest immediately and in
their entirety; provided, that, in the case of options or awards granted by
Triarc Beverage Holdings Corp., this Section 4.5 shall not be operative unless
and until such vesting would not constitute a default or an event of default or
result in a mandatory prepayment requirement under the terms of any agreement
for indebtedness for borrowed money (each a "Financing Limitation"); (B) all of
the Employee's (1) stock options or other stock based awards (whether issued by
Triarc or a subsidiary of Triarc) granted to Employee on or after the Effective
Date or (2) Triarc stock options (including those previously vested) granted
before the Effective Date if the exercise price thereof is greater than the
closing price of Triarc's common stock on the New York Stock Exchange on the
Effective Date, shall remain exercisable until the earlier of (i) one year
following such termination or (ii) their respective stated expiration dates; and
(C) any restricted stock then owned by the Employee shall vest immediately.
4.6. (A) In the event of the termination of this Agreement by
Triarc without Cause (including pursuant to Section 4.4) or by the Employee for
Good Reason (as hereinafter defined), the Employee shall be entitled to receive
in a lump sum in cash within ten (10) days after the date of termination the
aggregate of the following amounts:
(a) the amounts described in clauses (a) and (b) of the first
paragraph of Section 4.1;
(b) Employee's then current Salary for the remainder of the
Term (but in no event for more than two and one-half (2-1/2) years from the date
of termination; and
(c) two and one-half (2-1/2) times the Bonus Amount; provided
that for this purpose, the Bonus Amount shall be calculated using only the Look-
Back Bonus and the Target Bonus.
In addition, upon termination of the Employee in accordance with
this Section 4.6, the Employee shall: (i) be paid the Pro-Rata Bonus for the
Fiscal Year in which the effective date of the termination occurs, in a lump sum
in cash at the time the Employee would have been entitled to receive his Bonus
for such Fiscal Year; (ii) if the Actual Bonus for the Fiscal Year of
termination exceeds the Bonus Amount as determined in accordance with clause (c)
immediately above, be entitled to receive two and one-half (2-1/2) times the
amount by which the Actual Bonus exceeds such Bonus Amount in a lump sum in cash
at the time the Employee would have been entitled to receive his Bonus for such
Fiscal Year; (iii) be paid within 30 days of the date of termination, the amount
described in clause (iii) of the second sentence of the second full paragraph
<PAGE>
of Section 4.1 and shall receive the benefits, or payment in lieu of benefits,
described in clause (ii) of the second sentence and third sentence, of the
second full paragraph of Section 4.1; and (iv) receive two and one-half (2-1/2)
additional years of age and service credit under each qualified and non-
qualified defined benefit pension plan of Triarc in which the Employee
participates at the time of termination.
(B) For purposes of this Agreement, "Good Reason" means:
(i) any failure by Triarc to comply with any of the provisions of
Section 3 of this Agreement;
(ii) Triarc requiring the Employee to be based at any office or
location other than that described in Section 1.3 hereof; or
(iii) any failure by Triarc to comply with and satisfy Section 7 of
this Agreement by causing any successor to Triarc to fail to
expressly assume and agree to perform this Agreement with the
Employee, to the full extent set forth in said Section 7;
provided that a termination by the Employee with Good Reason shall be effective
only if, within 30 days following the delivery of a Notice of Termination (as
defined in Section 9) for Good Reason by the Employee to Triarc, Triarc has
failed to cure the circumstances giving rise to Good Reason to the reasonable
satisfaction of the Employee. For purposes of this Section 4.6, a good faith
determination made by the Employee that a "Good Reason" for termination has
occurred, and has not been adequately cured, shall be conclusive and binding.
4.7. Triarc acknowledges and agrees that the Employee shall
have no duty at any time to seek other employment or to mitigate his damages
hereunder. The amounts payable to the Employee under this Agreement shall be
paid regardless of whether the Employee obtains other employment.
4.8. Nothing in this Agreement shall prevent or limit the
Employee's continuing or future participation in any benefit, bonus, incentive
(whether cash of equity based, or otherwise) or other plan or program provided
by Triarc or any of its affiliated companies and for which the Employee may
qualify, nor shall anything herein limit or otherwise affect such rights as the
Employee may have under any stock option or other agreements with Triarc or any
of its affiliated companies. Amounts which are vested benefits or which the
Employee is otherwise entitled to receive under any plan or program of Triarc or
any of its affiliated companies at or subsequent to the date on which the
Employee's employment is terminated shall be payable in accordance with such
plan or program. Anything herein to the contrary notwithstanding, if the
Employee becomes entitled to payments pursuant to Section 4.6 hereof, the
Employee agrees to waive payments under any severance plan or program of Triarc.
<PAGE>
5. Inventions
The Employee agrees that all processes, technologies, designs
and inventions ("Inventions"), including new contributions, improvements, ideas
and discoveries, whether patentable or not, conceived, developed, invented or
made by him during the Term of this Agreement shall belong to Triarc, provided
that such Inventions grew out of the Employee's work for Triarc, are related in
any manner to the business (commercial or experimental) of Triarc or are
conceived or made on Triarc's time or with the use of Triarc's facilities or
materials. The Employee shall further: (a) promptly disclose such Inventions to
Triarc; (b) assign to Triarc, without additional compensation, all patent and
other rights to such Inventions for the United States and foreign countries; (c)
sign all papers necessary to carry out the foregoing; and (d) give testimony in
support of the status of the Employee as the inventor of such inventions. The
Employee agrees that he will not assert any rights to any Invention as having
been made or acquired by him prior to the date of this Agreement, except for
Inventions, if any, disclosed to Triarc in writing prior to the date hereof.
6. Confidentiality
In order to maintain the fullest degree of confidentiality
with respect to the business and operations of Triarc:
6.1. The Employee shall be required to accept and fully comply
with all security and communications requirements imposed by Triarc. All
equipment and facilities that Triarc determines to be necessary or appropriate
for fulfilling such communications and security requirements shall be provided
to the Employee at Triarc's expense. Except as otherwise provided herein, such
equipment and facilities shall be returned to Triarc, as is (other than normal
wear and tear), upon the termination of this Agreement.
6.2. The Employee agrees that all memoranda, notes, records or
other documents made or compiled by the Employee in the fulfillment of his
obligations under this Agreement or otherwise made available to him concerning
any process, apparatus, service, or product manufactured, used, developed,
investigated or seriously considered by Triarc shall be Triarc's property and
shall be delivered to Triarc on the termination of this Agreement or at any
other time on Triarc's request. The Employee shall not knowingly use, for
himself or others, or divulge to others, other than in the ordinary course of
Triarc's business, any secret or confidential information, knowledge or data of
Triarc (including, without limitation, names of customers of Triarc) obtained by
him as a result of his performance of this Agreement, unless authorized by
Triarc.
<PAGE>
7. Assignment
This Agreement is binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns.
Notwithstanding the foregoing, neither party shall assign or transfer any rights
or obligations hereunder, except that, subject to Section 4.4 hereof, Triarc may
assign or transfer this Agreement to a successor partnership, limited liability
company, or corporation in the event of a merger, consolidation, or transfer or
sale of all or substantially all of the assets of Triarc, provided that Triarc
shall require any successor to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that Triarc would be
required to perform if no such succession had taken place. As used in this
Agreement, "Triarc" means Triarc, as hereinbefore defined and any successor to
its business and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law or otherwise. Any purported assignment, other than
as provided above, shall be null and void.
8. Indemnification; Legal Fees
Triarc will indemnify the employee, to the maximum extent
permitted by applicable law, against all costs, charges and expenses incurred or
sustained by him in connection with any action, suit or proceeding to which he
may be made a party by reason of his being an officer, director or employee of
Triarc or of any subsidiary or affiliate of Triarc. Triarc shall pay directly
the fees and expenses of counsel and other experts incurred in connection with
the enforcement of this Agreement, as they may be incurred, provided that the
Employee shall be required to reimburse Triarc for any amounts so paid unless at
least one material matter in dispute is decided in favor of Employee.
9. Notices
A. Any termination by Triarc with or without Cause or by the
Employee with or without Good Reason or following a Change in Control shall be
communicated by Notice of Termination to the other party hereto given in
accordance with this Section 9. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of the
Employee's employment under the provision so indicated and (iii) if the
termination date is other than the date of receipt of such notice specifies the
proposed termination date.
B. All notices, requests, consents and other communications,
required or permitted to be given hereunder, shall be in writing and shall be
delivered personally or sent by facsimile transmission, overnight courier or
mailed, first-class, postage prepaid, by registered or certified mail, as
follows:
<PAGE>
if to Triarc:
280 Park Avenue
New York, NY 10017
Attention: President
Fax: 212-451-3024
if to the Employee:
John L. Barnes, Jr.
31 Old Redding Road
Weston, CT 06883
Fax: 203/221-7892
or to such other address as either party shall designate by notice in writing to
the other in accordance herewith. Any such notice shall be deemed given when so
delivered personally, by facsimile transmission (when the answer-back is
received), or if sent by overnight courier, one day after delivery to such
courier by the sender or if mailed, five days after deposit by the sender in the
U.S. mails.
10. Waiver
No waiver of any provision of this Agreement or modification
or amendment of the same shall be effective, binding or enforceable unless in
writing and signed by the party to be charged therewith.
11. Governing Law
This Agreement shall be governed by and administered in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely within such State.
12. Certain Additional Payments by Triarc. (A) If it is determined
(as hereafter provided) that any payment or distribution by Triarc to or for the
benefit of the Employee, whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise pursuant to or by reason of
any other agreement, policy, plan, program or arrangement, including without
limitation any stock option, stock appreciation right or similar right, or the
lapse or termination of any restriction on or the vesting or exercisability of
any of the foregoing (a "Payment"), would be subject to the excise tax imposed
by Section 4999 of the Code (or any successor provision thereto) or to any
similar tax imposed by state or local law, or any interest or penalties with
respect to such excise tax (such tax or taxes, together with any such interest
and penalties, are hereafter collectively referred to as the "Excise Tax"), then
the Employee will be entitled to receive an additional payment or payments (a
"Gross-Up Payment") in an amount such that, after payment by the Employee of all
<PAGE>
taxes (including any interest or penalties imposed with respect to such
taxes), including any Excise Tax, imposed upon the Gross-Up Payment, the
Employee retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(B) Subject to the provisions of Section 12(F) hereof, all
determinations required to be made under this Section 12, including whether an
Excise Tax is payable by the Employee and the amount of such Excise Tax and
whether a Gross-Up Payment is required and the amount of such Gross-Up Payment,
will be made by a nationally recognized firm of certified public accountants
(the "Accounting Firm") selected by the Employee in his sole discretion. The
Employee will direct the Accounting Firm to submit its determination and
detailed supporting calculations to both Triarc and the Employee within 15
calendar days after the date of the Change in Control or the date of the
Employee's termination of employment, if applicable, and any other such time or
times as may be requested by Triarc or the Employee. If the Accounting Firm
determines that any Excise Tax is payable by the Employee, Triarc will pay the
required Gross-Up Payment to the Employee within five business days after
receipt of such determination and calculations. If the Accounting Firm
determines that no Excise Tax is payable by the Employee, it will, at the same
time as it makes such determination, furnish the Employee with an opinion that
he has substantial authority not to report any Excise Tax on his federal, state,
local income or other tax return. Any determination by the Accounting Firm as to
the amount of the Gross-Up Payment will be binding upon Triarc and the Employee.
As a result of the uncertainty in the application of Section 4999 of the Code
(or any successor provision thereto) and the possibility of similar uncertainty
regarding applicable state or local tax law at the time of any determination by
the Accounting Firm hereunder, it is possible that Gross-Up Payments which will
not have been made by Triarc should have been made (an "Underpayment"),
consistent with the calculations required to be made hereunder. In the event
that Triarc exhausts or fails to pursue its remedies pursuant to Section 12(F)
hereof and the Employee thereafter is required to make a payment of any Excise
Tax, the Employee will direct the Accounting Firm to determine the amount of the
Underpayment that has occurred and to submit its determination and detailed
supporting calculations to both Triarc and the Employee as promptly as possible.
Any such Underpayment will be promptly paid by Triarc to, or for the benefit of,
the Employee within five business days after receipt of such determination and
calculations.
(C) Triarc and the Employee will each provide the Accounting
Firm access to and copies of any books, records and documents in the possession
of Triarc or the Employee, as the case may be, reasonably requested by the
Accounting Firm, and otherwise cooperate with the Accounting Firm in connection
with the preparation and issuance of the determination contemplated by Section
12(B) hereof.
<PAGE>
(D) The federal, state and local income or other tax returns
filed by the Employee will be prepared and filed on a consistent basis with the
determination of the Accounting Firm with respect to the Excise Tax payable by
the Employee. The Employee will make proper payment of the amount of any Excise
Tax, and at the request of Triarc, provide to Triarc true and correct copies
(with any amendments) of his federal income tax return as filed with the
Internal Revenue Service and corresponding state and local tax returns, if
relevant, as filed with the applicable taxing authority, and such other
documents reasonably requested by Triarc, evidencing such payment. If prior to
the filing of the Employee's federal income tax return, or corresponding state
or local tax return, if relevant, the Accounting Firm determines that the amount
of the Gross-Up Payment should be reduced, the Employee will within five
business days pay to Triarc the amount of such reduction.
(E) The fees and expenses of the Accounting Firm for its
services in connection with the determinations and calculations contemplated by
Sections 12(B) and (D) hereof will be borne by Triarc. If such fees and expenses
are initially advanced by the Employee, Triarc will reimburse the Employee the
full amount of such fees and expenses within five business days after receipt
from the Employee of a statement therefor and reasonable evidence of his payment
thereof.
(F) The Employee will notify Triarc in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
Triarc of a Gross-Up Payment. Such notification will be given as promptly as
practicable but no later than 10 business days after the Employee actually
receives notice of such claim and the Employee will further apprise Triarc of
the nature of such claim and the date on which such claim is requested to be
paid (in each case, to the extent known by the Employee). The Employee will not
pay such claim prior to the earlier of (i) the expiration of the 30-calendar-day
period following the date on which he gives such notice to Triarc and (ii) the
date that any payment of amount with respect to such claim is due. If Triarc
notifies the Employee in writing prior to the expiration of such period that it
desires to contest such claim, the Employee will:
(vi) provide Triarc with any written records or documents in his
possession relating to such claim reasonably requested by
Triarc;
(vii) take such action in connection with contesting such claim as
Triarc will reasonably request in writing from time to time,
including without limitation accepting legal representation
with respect to such claim by an attorney competent in respect
of the subject matter and reasonably selected by Triarc;
(viii)cooperate with Triarc in good faith in order effectively to
contest such claim; and
<PAGE>
(ix) permit Triarc to participate in any proceedings relating to
such claim; provided, however, that Triarc will bear and pay
directly all costs and expenses (including interest and
penalties) incurred in connection with such contest and will
indemnify and hold harmless the Employee, on an after-tax
basis, for and against any Excise Tax or income tax, including
interest and penalties with respect thereto, imposed as a
result of such representation and payment of costs and
expenses. Without limiting the foregoing provisions of this
Section 12(F), Triarc will control all proceedings taken in
connection with the contest of any claim contemplated by this
Section 12(F) and, at its sole option, may pursue or forego
any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim
(provided that the Employee may participate therein at his own
cost and expense) and may, at its option, either direct the
Employee to pay the tax claimed and sue for a refund or
contest the claim in any permissible manner, and the Employee
agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction
and in one or more appellate courts, as Triarc will determine;
provided, however, that if Triarc directs the Employee to pay
the tax claimed and sue for a refund, Triarc will advance the
amount of such payment to the Employee on an interest-free
basis and will indemnify and hold the Employee harmless, on an
after-tax basis, from any Excise Tax or income tax, including
interest or penalties with respect thereto, imposed with
respect to such advance; and provided further, however, that
any extension of the statute of limitations relating to
payment of taxes for the taxable year of the Employee with
respect to which the contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, Triarc's
control of any such contested claim will be limited to issues
with respect to which a Gross-Up Payment would be payable
hereunder and the Employee will be entitled to settle or
contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(G) If, after the receipt by the Employee of an amount
advanced by Triarc pursuant to Section 12(F) hereof, the Employee receives any
refund with respect to such claim, the Employee will (subject to Triarc's
complying with the requirements of Section 12(F) hereof) promptly pay to Triarc
the amount of such refund (together with any interest paid or credited thereon
after any taxes applicable thereto). If, after the receipt by the Employee of an
amount advanced by Triarc pursuant to Section 12(F) hereof, a determination is
made that the Employee will not be entitled to any refund with respect to
<PAGE>
such claim and Triarc does not notify the Employee in writing of its intent
to contest such denial or refund prior to the expiration of 30 calendar days
after such determination, then such advance will be forgiven and will not be
required to be repaid and the amount of such advance will offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid pursuant to this
Section 12.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
TRIARC COMPANIES, INC.
By: PETER W. MAY
-------------------------------------
Name: Peter W. May
Title: President
JOHN L. BARNES, JR.
------------------------------------------
John L. Barnes, Jr.
<PAGE>
Exhibit 10.4
EMPLOYMENT AGREEMENT, made as of February 24, 2000 (the "Effective
Date"), between TRIARC COMPANIES, INC. ("Triarc") and Eric D. Kogan (the
"Employee").
1. Employment, Duties and Acceptance
1.1. Triarc hereby employs the Employee, for the Term (as
hereinafter defined) to render exclusive and full-time services to Triarc as a
senior executive officer of Triarc with the title of Executive Vice
President--Corporate Development and, in connection therewith, to perform such
duties commensurate with such office, as shall be assigned to him by the
Chairman and Chief Executive Officer or the President and Chief Operating
Officer.
1.2. The Employee hereby accepts such employment and agrees to
render the exclusive, full-time services described above. The Employee further
agrees to accept election and to serve during all or any part of the Term as an
officer, director or representative of any subsidiary or affiliate of Triarc,
without any compensation therefor other than that specified in this Agreement.
Employee may (i) serve on corporate, civic, professional, educational,
philanthropic or charitable boards or committees and (ii) deliver lectures or
fulfill speaking engagements, as long as such activities do not significantly
interfere with the performance of Employee's responsibilities hereunder.
1.3. The duties to be performed by the Employee hereunder
shall be performed primarily in New York, New York, subject to reasonable travel
requirements on behalf of Triarc. Triarc shall not relocate the Employee outside
of New York, New York without his prior written consent. The Employee will be
entitled to such amounts of paid vacation time as are comparable to that
provided to other senior executives of Triarc (but in any event, not less than
four weeks per annum).
2. Term of Employment
The term of the Employee's employment under this Agreement
(the "Term") shall commence as of the Effective Date, and, subject to Section 4,
shall end on the third anniversary of the Effective Date; provided, however,
that the Term shall automatically be extended for successive one-year periods on
each annual anniversary of the Effective Date unless, not later than 180 days
preceding the date of any such extension, Triarc or the Employee shall have
given written notice to the other party that it does not wish to further extend
the Term (the Term and, unless the period of employment is not so extended (as
provided for in the above proviso), such additional period(s) of employment, are
collectively referred to herein as the "Term"). Each successive 12 month period
<PAGE>
(commencing on the date hereof) during the Term of this Agreement is sometimes
referred to herein as a "Contract Year."
3. Compensation
3.1. During the Term, Triarc agrees to pay to the Employee as
his salary (the "Salary") for the services to be performed by him as provided
herein compensation at the rate of $475,000 per year, payable in equal monthly
installments or more frequently, less such deductions or amounts to be withheld
as shall be required by applicable law and regulations. Triarc may increase, but
not decrease the Salary from time to time during the Term.
3.2. In addition to the Salary, the Employee shall also be
eligible during each of Triarc's fiscal years (a "Fiscal Year") throughout the
Term to receive bonuses from time to time as appropriate, in the sole discretion
of Triarc, and to participate in the 1999 Executive Bonus Plan. The aggregate of
such bonus payments with respect to any such fiscal year shall be referred to
herein as that fiscal year's "Bonus".
3.3. Triarc agrees to reimburse the Employee for or to pay at
the Employees' direction all expenses reasonably incurred by the Employee in the
course of performing his duties under this Agreement. The Employee agrees to
submit such written documentation as Triarc may reasonably request in order to
verify the expenditure of such funds or the incurrence of such expenses to
Triarc's reasonable satisfaction, the submission of which shall be a condition
of reimbursement for or payment of same.
3.4. The Employee shall be entitled to all rights and benefits
for which he shall be eligible under any long or short-term management incentive
plan (whether cash or equity based, or otherwise), retirement, retirement
savings, profit-sharing, pension or welfare benefit plan, life, disability,
health, dental, hospitalization and other forms of insurance, and all other
so-called "fringe" benefits or perquisites which Triarc shall from time to time
provide for its senior executives. Without limitation, Triarc shall, with
respect to payments made under this Agreement, make maximum matching
contributions under Triarc's 401(k) plan to the extent permitted by applicable
law and such plan.
3.5. The Employee will cooperate in assisting Triarc in
obtaining a key man life insurance policy on the life of Employee, the
beneficiary of which shall be named by Triarc, including completing all
necessary application materials and submitting to one or more physical
examinations with a physician of Triarc's choice.
<PAGE>
4. Termination
4.1. If the Employee shall die during the Term, this Agreement
shall terminate, except that the Employee's estate shall be entitled to receive
a lump sum payment in cash within 30 days of the date of death, of the following
amounts:
a. to the extent not theretofore paid, Employee's then
current Salary through the date of termination plus
any Bonus amounts which have become payable and
any accrued vacation pay;
b. two and one-half (2-1/2) times the sum of employer
contributions paid or accrued on Employee's behalf to
any qualified or nonqualified defined contribution
retirement plans during the calendar year immediately
preceding termination.
In addition, upon a termination of the Employee in accordance
with this Section 4.1, Triarc shall pay the Employee's estate at the time or
times determined by Triarc, but in no event less rapidly than three
substantially equal annual installments beginning no later than 30 days after
the date of death the following amounts: (i) Employee's then current Salary for
the remainder of the Term (but in no event for more than two and one-half
(2-1/2) years from the date of termination) and (ii) two and one-half (2-1/2)
times the Bonus Amount (as hereinafter defined). Furthermore, upon termination
of the Employee in accordance with this Section 4.1, Triarc shall (i) pay the
Employee's estate, in a lump sum in cash at the time the Employee would have
been entitled to receive his Bonus for the Fiscal Year in which his death
occurs, the Pro-Rata Bonus (as hereinafter defined) for such Fiscal Year; (ii)
continue to provide welfare benefits to the Employee and his family for the
remainder of the Term at least equal to those which were being provided to them
at any time within the six-month period ending on the date of termination and
(iii) credit the Employee with two and one-half (2-1/2) additional years of age
and service under each of Triarc's qualified and nonqualified defined benefit
pension plans in which the Employee participates at the time of termination;
provided that in the case of a qualified defined benefit pension plan, the
present value of the additional benefit the Employee would have accrued if he
had been credited with such additional years of age and service (computed using
the actuarial assumptions used for purposes of the most recent actuarial report
in respect of such plan) will be paid in a lump sum in cash within thirty (30)
days after the date of termination; further provided that, in computing such
additional benefit, the Employee shall be deemed to earn compensation for such
additional two and one-half (2-1/2) year period at the same rate as in the
calendar year immediately preceding such termination. To the extent that the
benefits provided for in clause (ii) are not permissible after termination of
employment under the terms of Triarc's benefit plans in effect, Triarc shall pay
to the Employee's estate in a lump sum in cash within thirty (30) days after
<PAGE>
the date of termination an amount equal to the after-tax cost of acquiring on a
non-group basis, for the remainder of the Term, those benefits lost to the
Employee and/or to the Employee's family as a result of the Employee's
termination. Employee's estate shall also be entitled to receive those
death benefits to which the Employee is entitled as of the date of the
Employee's death under any death benefit plans, policies or arrangements of
Triarc.
"Bonus Amount" shall mean: the greatest of (a) the largest
Bonus paid to Employee in respect of the two Fiscal Years preceding the date of
termination minus, in the case of any Bonus being used for purposes of
calculating this clause (a) with respect to Fiscal Year 1998 or 1999, $175,000
(the "Look-Back Bonus"), (b) the Bonus which would have been paid to Employee in
respect of the Fiscal Year in which termination occurs if Triarc attained its
budgeted financial performance, and accomplished any other targeted goals for
such year, as reasonably determined by the Compensation Committee of the Board
of Directors (the "Target Bonus") or (c) the Bonus which would have been paid to
the Employee in respect of the Fiscal Year in which termination occurs based on
Triarc's actual performance, and actual accomplishment of any other targeted
goals, as reasonably determined by the Compensation Committee of the Board of
Directors (the "Actual Bonus").
"Pro-Rata Bonus" shall mean: the product of (x) the Bonus
Amount and (y) the number of days elapsed in such year proceeding the date of
termination divided by 365.
4.2. Triarc may terminate the Term of the Employee's
employment hereunder after having established Employee's Disability (pursuant to
the definition of "Disability" set forth below), by giving to Employee written
notice of its intention to terminate Employee's employment. In such a case,
Employee's employment with Triarc shall terminate effective on the 180th day
after receipt of such notice (the "Disability Effective Date"), provided that,
within 180 days after such receipt, Employee shall not have returned to full
performance of Employee's duties. For purposes of this Agreement, "Disability"
means personal injury, illness or other cause which, after the expiration of not
less than 180 days after its commencement, renders Employee unable to perform
his duties with substantially the same level of quality as immediately prior to
such incident and such disability is determined to be total and permanent by a
physician selected by Triarc or its insurers and acceptable to Employee or
Employee's legal representative (such agreement as to acceptability not to be
withheld unreasonably).
Notwithstanding such termination, the Employee shall be entitled to the
following amounts:
<PAGE>
(a) the amounts described in clauses (a) and (b) of the first
paragraph of Section 4.1, paid in a lump sum in cash within 30 days of the date
of such termination;
(b) the Pro-Rata Bonus for the Fiscal Year in which the
effective date of the termination occurs, paid in a lump sum in cash at the time
the Employee would have been entitled to receive his Bonus for such Fiscal Year;
(c) the amount described in clause (iii) of the second
sentence of the second full paragraph of Section 4.1 and to receive the
benefits, or payment in lieu of benefits, described in clause (ii) of the second
sentence and third sentence, of the second full paragraph of Section 4.1, paid
in a lump sum in cash within 30 days of the date of such termination. In
addition, to the extent permitted by any plan, the Employee shall be entitled to
receive any disability payments to which he is eligible pursuant to any plan
referred to in Section 3.4 above; and
(d) the amounts described in clauses (i) and (ii) of the first
sentence of the second full paragraph of Section 4.1 payable to the Employee at
the time or times determined by the Corporation, but in no event less rapidly
then three substantially equal installments beginning on the 30th day after the
termination of the Term under this Section 4.2.
4.3. This Agreement may be terminated by Triarc prior to its
scheduled termination date only for Cause (as defined below). If this Agreement
shall be lawfully terminated by Triarc for Cause during the Term, Triarc's
obligation to pay compensation or other payments hereunder or otherwise to or
for the benefit of the Employee shall cease on the effective date of such
termination; provided, however, that within 30 days of the effectiveness of such
termination, Triarc shall pay the Employee all Salary, business expenses,
amounts payable under any plan or benefit program or other amounts that were
accrued or incurred but unpaid or unreimbursed (including vacation time) at the
effective date of such termination. As used herein the term "Cause" shall mean
only (i) the willful and continued failure of Employee to perform substantially
his duties with Triarc (other than any such failure resulting from Employee's
incapacity due to physical or mental illness or any such failure subsequent to
Employee being delivered a Notice of Termination (as defined in Section 12)
without Cause by Triarc or Employee delivering a Notice of Termination for Good
Reason to Triarc) after a written demand for substantial performance is
delivered to Employee by the Board of Directors which specifically identifies
the manner in which the Board believes that Employee has not substantially
performed Employee's duties and Employee has failed to cure such failure to the
reasonable satisfaction of the Board, (ii) the willful engaging by Employee in
gross misconduct which results in substantial damage to Triarc or its
affiliates, or (iii) Employee's conviction (by a court of competent
jurisdiction, not subject to further appeal) of, or pleading guilty to, a
felony. For purpose of this Section 4.3, no act or failure to act by Employee
shall be considered "willful" unless done or omitted to be done by Employee
<PAGE>
in bad faith and without reasonable belief that Employee's action or omission
was in the best interests of Triarc or its affiliates. Any act, or failure to
act, based upon authority given pursuant to a resolution duly adopted by the
Board or based upon the advice of counsel for Triarc shall be conclusively
presumed to be done, or omitted to be done, by Employee in good faith and in
the best interests of Triarc. Cause shall not exist unless and until Triarc
has delivered to Employee, along with the Notice of Termination for Cause, a
copy of a resolution duly adopted by three-quarters (3/4) of the entire Board
(excluding Employee if Employee is a Board member) at a meeting of the Board
called and held for such purpose (after reasonable notice to Employee and an
opportunity for Employee, together with counsel, to be heard before the
Board), finding that in the good faith opinion of the Board an event set
forth in clauses (i) - (iii) above has occurred and specifying the particulars
thereof in detail. The Board must notify Employee of any event constituting
Cause within ninety (90) days following the Board's knowledge of its
existence or such event shall not constitute Cause under this Agreement.
4.4. This Agreement shall, at the option of the Employee, be
deemed to have been terminated by Triarc without Cause, following a Change in
Control (as defined herein). The term "Change in Control" shall mean:
(i) the acquisition by any person of more than 50% of
the combined voting power of the outstanding securities entitled to
vote generally in the election of directors of Triarc, followed by,
without the prior consent of the Employee, any meaningful diminution
in the Employee's duties or authority in effect immediately prior to
such acquisition;
(ii) a majority of the Board of Directors of Triarc shall be
individuals who are not nominated by the Board of Directors of
Triarc, followed by, without the prior consent of the Employee, any
meaningful diminution in the Employee's duties or authority in
effect immediately prior to such nomination; or
(iii) neither Messrs. Nelson Peltz nor Peter W. May being
Chairman and Chief Executive Officer and President and Chief
Operating Officer, respectively, of Triarc.
The ownership or acquisition of any portion of the combined voting power of
Triarc by DWG Acquisition Group, L.P., Nelson Peltz or Peter W. May or by any
person affiliated with such persons shall in no event constitute a Change in
Control. The merger, consolidation or sale of assets of Triarc or any subsidiary
of Triarc with or to any corporation or entity controlled by DWG Acquisition
Group, L.P., Nelson Peltz or Peter W. May or by any person affiliated with such
persons shall in no event constitute a Change in Control.
<PAGE>
4.5. In the event of the termination of this Agreement in
accordance with Sections 4.1, 4.2 or 4.6, (A) all non-vested stock options and
any other non-vested stock or stock-based awards (whether issued by Triarc or a
subsidiary of Triarc) then owned by the Employee shall vest immediately and in
their entirety; provided, that, in the case of options or awards granted by
Triarc Beverage Holdings Corp., this Section 4.5 shall not be operative unless
and until such vesting would not constitute a default or an event of default or
result in a mandatory prepayment requirement under the terms of any agreement
for indebtedness for borrowed money (each a "Financing Limitation"); (B) all of
the Employee's (1) stock options or other stock based awards (whether issued by
Triarc or a subsidiary of Triarc) granted to Employee on or after the Effective
Date or (2) Triarc stock options (including those previously vested) granted
before the Effective Date if the exercise price thereof is greater than the
closing price of Triarc's common stock on the New York Stock Exchange on the
Effective Date, shall remain exercisable until the earlier of (i) one year
following such termination or (ii) their respective stated expiration dates; and
(C) any restricted stock then owned by the Employee shall vest immediately.
4.6. (A) In the event of the termination of this Agreement by
Triarc without Cause (including pursuant to Section 4.4) or by the Employee for
Good Reason (as hereinafter defined), the Employee shall be entitled to receive
in a lump sum in cash within ten (10) days after the date of termination the
aggregate of the following amounts:
(a) the amounts described in clauses (a) and (b) of the first
paragraph of Section 4.1;
(b) Employee's then current Salary for the remainder of the
Term (but in no event for more than two and one-half (2-1/2) years from the date
of termination; and
(c) two and one-half (2-1/2) times the Bonus Amount; provided
that for this purpose, the Bonus Amount shall be calculated using only the Look-
Back Bonus and the Target Bonus.
<PAGE>
In addition, upon termination of the Employee in accordance
with this Section 4.6, the Employee shall: (i) be paid the Pro-Rata Bonus for
the Fiscal Year in which the effective date of the termination occurs, in a lump
sum in cash at the time the Employee would have been entitled to receive his
Bonus for such Fiscal Year; (ii) if the Actual Bonus for the Fiscal Year of
termination exceeds the Bonus Amount as determined in accordance with clause (c)
immediately above, be entitled to receive two and one-half (2-1/2) times the
amount by which the Actual Bonus exceeds such Bonus Amount in a lump sum in cash
at the time the Employee would have been entitled to receive his Bonus for such
Fiscal Year; (iii) be paid within 30 days of the date of termination, the amount
described in clause (iii) of the second sentence of the second full paragraph of
Section 4.1 and shall receive the benefits, or payment in lieu of benefits,
described in clause (ii) of the second sentence and third sentence, of the
second full paragraph of Section 4.1; and (iv) receive two and one-half (2-1/2)
additional years of age and service credit under each qualified and
non-qualified defined benefit pension plan of Triarc in which the Employee
participates at the time of termination.
(B) For purposes of this Agreement, "Good Reason" means:
(i) any failure by Triarc to comply with any of the
provisions of Section 3 of this Agreement;
(ii) Triarc requiring the Employee to be based at any office
or location other than that described in Section 1.3
hereof; or
(iii) any failure by Triarc to comply with and satisfy Section
7 of this Agreement by causing any successor to Triarc
to fail to expressly assume and agree to perform this
Agreement with the Employee, to the full extent set
forth in said Section 7;
provided that a termination by the Employee with Good Reason shall be effective
only if, within 30 days following the delivery of a Notice of Termination (as
defined in Section 9) for Good Reason by the Employee to Triarc, Triarc has
failed to cure the circumstances giving rise to Good Reason to the reasonable
satisfaction of the Employee. For purposes of this Section 4.6, a good faith
determination made by the Employee that a "Good Reason" for termination has
occurred, and has not been adequately cured, shall be conclusive and binding.
4.7. Triarc acknowledges and agrees that the Employee shall
have no duty at any time to seek other employment or to mitigate his damages
hereunder. The amounts payable to the Employee under this Agreement shall be
paid regardless of whether the Employee obtains other employment.
<PAGE>
4.8. Nothing in this Agreement shall prevent or limit the
Employee's continuing or future participation in any benefit, bonus, incentive
(whether cash of equity based, or otherwise) or other plan or program provided
by Triarc or any of its affiliated companies and for which the Employee may
qualify, nor shall anything herein limit or otherwise affect such rights as the
Employee may have under any stock option or other agreements with Triarc or any
of its affiliated companies. Amounts which are vested benefits or which the
Employee is otherwise entitled to receive under any plan or program of Triarc or
any of its affiliated companies at or subsequent to the date on which the
Employee's employment is terminated shall be payable in accordance with such
plan or program. Anything herein to the contrary notwithstanding, if the
Employee becomes entitled to payments pursuant to Section 4.6 hereof, the
Employee agrees to waive payments under any severance plan or program of Triarc.
5. Inventions
The Employee agrees that all processes, technologies, designs
and inventions ("Inventions"), including new contributions, improvements, ideas
and discoveries, whether patentable or not, conceived, developed, invented or
made by him during the Term of this Agreement shall belong to Triarc, provided
that such Inventions grew out of the Employee's work for Triarc, are related in
any manner to the business (commercial or experimental) of Triarc or are
conceived or made on Triarc's time or with the use of Triarc's facilities or
materials. The Employee shall further: (a) promptly disclose such Inventions to
Triarc; (b) assign to Triarc, without additional compensation, all patent and
other rights to such Inventions for the United States and foreign countries; (c)
sign all papers necessary to carry out the foregoing; and (d) give testimony in
support of the status of the Employee as the inventor of such inventions. The
Employee agrees that he will not assert any rights to any Invention as having
been made or acquired by him prior to the date of this Agreement, except for
Inventions, if any, disclosed to Triarc in writing prior to the date hereof.
6. Confidentiality
In order to maintain the fullest degree of confidentiality
with respect to the business and operations of Triarc:
6.1. The Employee shall be required to accept and fully comply
with all security and communications requirements imposed by Triarc. All
equipment and facilities that Triarc determines to be necessary or appropriate
for fulfilling such communications and security requirements shall be provided
to the Employee at Triarc's expense. Except as otherwise provided herein, such
equipment and facilities shall be returned to Triarc, as is (other than normal
wear and tear), upon the termination of this Agreement.
<PAGE>
6.2. The Employee agrees that all memoranda, notes, records or
other documents made or compiled by the Employee in the fulfillment of his
obligations under this Agreement or otherwise made available to him concerning
any process, apparatus, service, or product manufactured, used, developed,
investigated or seriously considered by Triarc shall be Triarc's property and
shall be delivered to Triarc on the termination of this Agreement or at any
other time on Triarc's request. The Employee shall not knowingly use, for
himself or others, or divulge to others, other than in the ordinary course of
Triarc's business, any secret or confidential information, knowledge or data of
Triarc (including, without limitation, names of customers of Triarc) obtained by
him as a result of his performance of this Agreement, unless authorized by
Triarc.
7. Assignment
This Agreement is binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns.
Notwithstanding the foregoing, neither party shall assign or transfer any rights
or obligations hereunder, except that, subject to Section 4.4 hereof, Triarc may
assign or transfer this Agreement to a successor partnership, limited liability
company, or corporation in the event of a merger, consolidation, or transfer or
sale of all or substantially all of the assets of Triarc, provided that Triarc
shall require any successor to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that Triarc would be
required to perform if no such succession had taken place. As used in this
Agreement, "Triarc" means Triarc, as hereinbefore defined and any successor to
its business and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law or otherwise. Any purported assignment, other than
as provided above, shall be null and void.
8. Indemnification; Legal Fees.
Triarc will indemnify the employee, to the maximum extent
permitted by applicable law, against all costs, charges and expenses incurred or
sustained by him in connection with any action, suit or proceeding to which he
may be made a party by reason of his being an officer, director or employee of
Triarc or of any subsidiary or affiliate of Triarc. Triarc shall pay directly
the fees and expenses of counsel and other experts incurred in connection with
the enforcement of this Agreement, as they may be incurred, provided that the
Employee shall be required to reimburse Triarc for any amounts so paid unless at
least one material matter in dispute is decided in favor of Employee.
<PAGE>
9. Notices
A. Any termination by Triarc with or without Cause or by the
Employee with or without Good Reason or following a Change in Control shall be
communicated by Notice of Termination to the other party hereto given in
accordance with this Section 9. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of the
Employee's employment under the provision so indicated and (iii) if the
termination date is other than the date of receipt of such notice specifies the
proposed termination date.
B. All notices, requests, consents and other communications,
required or permitted to be given hereunder, shall be in writing and shall be
delivered personally or sent by facsimile transmission, overnight courier or
mailed, first-class, postage prepaid, by registered or certified mail, as
follows:
if to Triarc:
280 Park Avenue
New York, NY 10017
Attention: President
Fax: 212-451-3024
if to the Employee:
Eric D. Kogan
34 Gramercy Park East, Apt. 1AR
New York, NY 10003
Fax: 212/505-7236
or to such other address as either party shall designate by notice in writing to
the other in accordance herewith. Any such notice shall be deemed given when so
delivered personally, by facsimile transmission (when the answer-back is
received), or if sent by overnight courier, one day after delivery to such
courier by the sender or if mailed, five days after deposit by the sender in the
U.S. mails.
10. Waiver
No waiver of any provision of this Agreement or modification
or amendment of the same shall be effective, binding or enforceable unless in
writing and signed by the party to be charged therewith.
<PAGE>
11. Governing Law
This Agreement shall be governed by and administered in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely within such State.
12. Certain Additional Payments by Triarc. (A) If it is determined
(as hereafter provided) that any payment or distribution by Triarc to or for the
benefit of the Employee, whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise pursuant to or by reason of
any other agreement, policy, plan, program or arrangement, including without
limitation any stock option, stock appreciation right or similar right, or the
lapse or termination of any restriction on or the vesting or exercisability of
any of the foregoing (a "Payment"), would be subject to the excise tax imposed
by Section 4999 of the Code (or any successor provision thereto) or to any
similar tax imposed by state or local law, or any interest or penalties with
respect to such excise tax (such tax or taxes, together with any such interest
and penalties, are hereafter collectively referred to as the "Excise Tax"), then
the Employee will be entitled to receive an additional payment or payments (a
"Gross-Up Payment") in an amount such that, after payment by the Employee of all
taxes (including any interest or penalties imposed with respect to such taxes),
including any Excise Tax, imposed upon the Gross-Up Payment, the Employee
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments.
(B) Subject to the provisions of Section 12(F) hereof, all
determinations required to be made under this Section 12, including whether an
Excise Tax is payable by the Employee and the amount of such Excise Tax and
whether a Gross-Up Payment is required and the amount of such Gross-Up Payment,
will be made by a nationally recognized firm of certified public accountants
(the "Accounting Firm") selected by the Employee in his sole discretion. The
Employee will direct the Accounting Firm to submit its determination and
detailed supporting calculations to both Triarc and the Employee within 15
calendar days after the date of the Change in Control or the date of the
Employee's termination of employment, if applicable, and any other such time or
times as may be requested by Triarc or the Employee. If the Accounting Firm
determines that any Excise Tax is payable by the Employee, Triarc will pay the
required Gross-Up Payment to the Employee within five business days after
receipt of such determination and calculations. If the Accounting Firm
determines that no Excise Tax is payable by the Employee, it will, at the same
time as it makes such determination, furnish the Employee with an opinion that
he has substantial authority not to report any Excise Tax on his federal, state,
local income or other tax return. Any determination by the Accounting Firm as to
the amount of the Gross-Up Payment will be binding upon Triarc and the Employee.
As a result of the uncertainty in the application of Section 4999 of the Code
(or any successor provision thereto) and the possibility of similar uncertainty
regarding applicable state or local tax law at the time of any determination by
<PAGE>
the Accounting Firm hereunder, it is possible that Gross-Up Payments which will
not have been made by Triarc should have been made(an "Underpayment"),
consistent with the calculations required to be made hereunder. In the event
that Triarc exhausts or fails to pursue its remedies pursuant to Section 12(F)
hereof and the Employee thereafter is required to make a payment of any
Excise Tax, the Employee will direct the Accounting Firm to determine the
amount of the Underpayment that has occurred and to submit its determination
and detailed supporting calculations to both Triarc and the Employee as
promptly as possible. Any such Underpayment will be promptly paid by Triarc
to, or for the benefit of, the Employee within five business days after
receipt of such determination and calculations.
(C) Triarc and the Employee will each provide the Accounting
Firm access to and copies of any books, records and documents in the possession
of Triarc or the Employee, as the case may be, reasonably requested by the
Accounting Firm, and otherwise cooperate with the Accounting Firm in connection
with the preparation and issuance of the determination contemplated by Section
12(B) hereof.
(D) The federal, state and local income or other tax returns
filed by the Employee will be prepared and filed on a consistent basis with the
determination of the Accounting Firm with respect to the Excise Tax payable by
the Employee. The Employee will make proper payment of the amount of any Excise
Tax, and at the request of Triarc, provide to Triarc true and correct copies
(with any amendments) of his federal income tax return as filed with the
Internal Revenue Service and corresponding state and local tax returns, if
relevant, as filed with the applicable taxing authority, and such other
documents reasonably requested by Triarc, evidencing such payment. If prior to
the filing of the Employee's federal income tax return, or corresponding state
or local tax return, if relevant, the Accounting Firm determines that the amount
of the Gross-Up Payment should be reduced, the Employee will within five
business days pay to Triarc the amount of such reduction.
(E) The fees and expenses of the Accounting Firm for its
services in connection with the determinations and calculations contemplated by
Sections 12(B) and (D) hereof will be borne by Triarc. If such fees and expenses
are initially advanced by the Employee, Triarc will reimburse the Employee the
full amount of such fees and expenses within five business days after receipt
from the Employee of a statement therefor and reasonable evidence of his payment
thereof.
(F) The Employee will notify Triarc in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
Triarc of a Gross-Up Payment. Such notification will be given as promptly as
practicable but no later than 10 business days after the Employee actually
receives notice of such claim and the Employee will further apprise Triarc of
the nature of such claim and the date on which such claim is requested to be
paid (in each case, to the extent known by the Employee). The Employee will not
pay such claim prior to the earlier of (i) the expiration of the 30-calendar-day
<PAGE>
period following the date on which he gives such notice to Triarc and (ii) the
date that any payment of amount with respect to such claim is due. If Triarc
notifies the Employee in writing prior to the expiration of such period that
it desires to contest such claim, the Employee will:
(vi) provide Triarc with any written records or documents in his
possession relating to such claim reasonably requested by
Triarc;
(vii) take such action in connection with contesting such claim as
Triarc will reasonably request in writing from time to time,
including without limitation accepting legal representation
with respect to such claim by an attorney competent in respect
of the subject matter and reasonably selected by Triarc;
(viii)cooperate with Triarc in good faith in order effectively to
contest such claim; and
(ix) permit Triarc to participate in any proceedings relating to
such claim; provided, however, that Triarc will bear and pay
directly all costs and expenses (including interest and
penalties) incurred in connection with such contest and will
indemnify and hold harmless the Employee, on an after-tax
basis, for and against any Excise Tax or income tax, including
interest and penalties with respect thereto, imposed as a
result of such representation and payment of costs and
expenses. Without limiting the foregoing provisions of this
Section 12(F), Triarc will control all proceedings taken in
connection with the contest of any claim contemplated by this
Section 12(F) and, at its sole option, may pursue or forego
any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim
(provided that the Employee may participate therein at his own
cost and expense) and may, at its option, either direct the
Employee to pay the tax claimed and sue for a refund or
contest the claim in any permissible manner, and the Employee
agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction
and in one or more appellate courts, as Triarc will determine;
provided, however, that if Triarc directs the Employee to pay
the tax claimed and sue for a refund, Triarc will advance the
amount of such payment to the Employee on an interest-free
basis and will indemnify and hold the Employee harmless, on an
after-tax basis, from any Excise Tax or income tax, including
interest or penalties with respect thereto, imposed
<PAGE>
with respect to such advance; and provided further, however,
that any extension of the statute of limitations relating to
payment of taxes for the taxable year of the Employee with
respect to which the contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, Triarc's
control of any such contested claim will be limited to issues
with respect to which a Gross-Up Payment would be payable
hereunder and the Employee will be entitled to settle or
contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(G) If, after the receipt by the Employee of an amount
advanced by Triarc pursuant to Section 12(F) hereof, the Employee receives any
refund with respect to such claim, the Employee will (subject to Triarc's
complying with the requirements of Section 12(F) hereof) promptly pay to Triarc
the amount of such refund (together with any interest paid or credited thereon
after any taxes applicable thereto). If, after the receipt by the Employee of an
amount advanced by Triarc pursuant to Section 12(F) hereof, a determination is
made that the Employee will not be entitled to any refund with respect to such
claim and Triarc does not notify the Employee in writing of its intent to
contest such denial or refund prior to the expiration of 30 calendar days after
such determination, then such advance will be forgiven and will not be required
to be repaid and the amount of such advance will offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid pursuant to this Section 12.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
TRIARC COMPANIES, INC.
By: PETER W. MAY
------------------------------
Name: Peter W. May
Title:President
ERIC D. KOGAN
----------------------------------
Eric D. Kogan
<PAGE>
Exhibit 10.5
EMPLOYMENT AGREEMENT, made as of February 24, 2000 (the "Effective
Date"), between TRIARC COMPANIES, INC. ("Triarc") and Brian L. Schorr (the
"Employee").
1. Employment, Duties and Acceptance
1.1. Triarc hereby employs the Employee, for the Term (as
hereinafter defined) to render exclusive and full-time services to Triarc as a
senior executive officer of Triarc with the title of Executive Vice President
and General Counsel and, in connection therewith, to perform such duties
commensurate with such office, as shall be assigned to him by the Chairman and
Chief Executive Officer or the President and Chief Operating Officer. As
Executive Vice President and General Counsel, the Employee shall be the chief
(senior) legal officer of Triarc.
1.2. The Employee hereby accepts such employment and agrees to
render the exclusive, full-time services described above. The Employee further
agrees to accept election and to serve during all or any part of the Term as an
officer, director or representative of any subsidiary or affiliate of Triarc,
without any compensation therefor other than that specified in this Agreement.
Employee may (i) serve on corporate, civic, professional, educational,
philanthropic or charitable boards or committees and (ii) deliver lectures or
fulfill speaking engagements, as long as such activities do not significantly
interfere with the performance of Employee's responsibilities hereunder.
1.3. The duties to be performed by the Employee hereunder
shall be performed primarily in New York, New York, subject to reasonable travel
requirements on behalf of Triarc. Triarc shall not relocate the Employee outside
of New York, New York without his prior written consent. The Employee will be
entitled to such amounts of paid vacation time as are comparable to that
provided to other senior executives of Triarc (but in any event, not less than
four weeks per annum).
2. Term of Employment
The term of the Employee's employment under this Agreement
(the "Term") shall commence as of the Effective Date, and, subject to Section 4,
shall end on the third anniversary of the Effective Date; provided, however,
that the Term shall automatically be extended for successive one-year periods on
each annual anniversary of the Effective Date unless, not later than 180 days
preceding the date of any such extension, Triarc or the Employee shall have
given written notice to the other party that it does not wish to further extend
the Term (the Term and, unless the period of employment is not so extended (as
provided for in the above proviso), such additional period(s) of employment, are
collectively referred to herein as the "Term"). Each successive 12 month period
<PAGE>
(commencing on the date hereof) during the Term of this Agreement is sometimes
referred to herein as a "Contract Year."
3. Compensation
3.1. During the Term, Triarc agrees to pay to the Employee as
his salary (the "Salary") for the services to be performed by him as provided
herein compensation at the rate of $475,000 per year, payable in equal monthly
installments or more frequently, less such deductions or amounts to be withheld
as shall be required by applicable law and regulations. Triarc may increase, but
not decrease the Salary from time to time during the Term.
3.2. In addition to the Salary, the Employee shall also be
eligible during each of Triarc's fiscal years (a "Fiscal Year") throughout the
Term to receive bonuses from time to time as appropriate, in the sole discretion
of Triarc, and to participate in the 1999 Executive Bonus Plan. The aggregate of
such bonus payments with respect to any such fiscal year shall be referred to
herein as that fiscal year's "Bonus".
3.3. Triarc agrees to reimburse the Employee for or to pay at
the Employees' direction all expenses reasonably incurred by the Employee in the
course of performing his duties under this Agreement. The Employee agrees to
submit such written documentation as Triarc may reasonably request in order to
verify the expenditure of such funds or the incurrence of such expenses to
Triarc's reasonable satisfaction, the submission of which shall be a condition
of reimbursement for or payment of same.
3.4. The Employee shall be entitled to all rights and benefits
for which he shall be eligible under any long or short-term management incentive
plan (whether cash or equity based, or otherwise), retirement, retirement
savings, profit-sharing, pension or welfare benefit plan, life, disability,
health, dental, hospitalization and other forms of insurance, and all other
so-called "fringe" benefits or perquisites which Triarc shall from time to time
provide for its senior executives. Without limitation, Triarc shall, in addition
to the life insurance coverage provided for in the previous sentence, continue
to pay the Employee as additional wages as it has been doing as of the date
hereof (either directly or to the Trustee of the Brian L. Schorr 1991 Insurance
Trust u/t/a dated March 31, 1991) an amount equal to the premiums of (i) a life
insurance policy (as to which the Employee names the beneficiary) in the face
amount of $1,000,000 and (ii) a life insurance policy (as to which the Employee
names the beneficiary) in the face amount of $2,830,000 and shall, with respect
to payments made under this Agreement, make maximum matching contributions under
Triarc's 401(k) plan to the extent permitted by applicable law and such plan.
<PAGE>
3.5. The Employee will cooperate in assisting Triarc in
obtaining a key man life insurance policy on the life of Employee, the
beneficiary of which shall be named by Triarc, including completing all
necessary application materials and submitting to one or more physical
examinations with a physician of Triarc's choice.
3.6. Employee's Property. Triarc acknowledges that the desk,
chairs, bookcase, lamp, sports memorabilia and conference table (as well as
certain other furnishings and appointments in the Employee's office) were
purchased by the Employee and are the property of the Employee.
4. Termination
4.1. If the Employee shall die during the Term, this Agreement
shall terminate, except that the Employee's estate shall be entitled to receive
a lump sum payment in cash within 30 days of the date of death, of the following
amounts:
a. to the extent not theretofore paid, Employee's then
current Salary through the date of termination plus
any Bonus amounts which have become payable and
any accrued vacation pay;
b. two and one-half (2-1/2) times the sum of employer
contributions paid or accrued on Employee's behalf to
any qualified or nonqualified defined contribution
retirement plans during the calendar year immediately
preceding termination.
In addition, upon a termination of the Employee in accordance
with this Section 4.1, Triarc shall pay the Employee's estate at the time or
times determined by Triarc, but in no event less rapidly than three
substantially equal annual installments beginning no later than 30 days after
the date of death the following amounts: (i) Employee's then current Salary for
the remainder of the Term (but in no event for more than two and one-half
(2-1/2) years from the date of termination) and (ii) two and one-half (2-1/2)
times the Bonus Amount (as hereinafter defined). Furthermore, upon termination
of the Employee in accordance with this Section 4.1, Triarc shall (i) pay the
Employee's estate, in a lump sum in cash at the time the Employee would have
been entitled to receive his Bonus for the Fiscal Year in which his death
occurs, the Pro-Rata Bonus (as hereinafter defined) for such Fiscal Year; (ii)
continue to provide welfare benefits to the Employee and his family for the
remainder of the Term at least equal to those which were being provided to them
at any time within the six-month period ending on the date of termination and
(iii) credit the Employee with two and one-half (2-1/2) additional years of age
and service under each of Triarc's qualified and nonqualified defined benefit
pension plans in which the Employee participates at the time of termination;
provided that in the case of a qualified defined benefit pension plan, the
<PAGE>
present value of the additional benefit the Employee would have accrued if
he had been credited with such additional years of age and service (computed
using the actuarial assumptions used for purposes of the most recent actuarial
report in respect of such plan) will be paid in a lump sum in cash within
thirty (30) days after the date of termination; further provided that, in
computing such additional benefit, the Employee shall be deemed to earn
compensation for such additional two and one-half (2-1/2) year period at
the same rate as in the calendar year immediately preceding such
termination. To the extent that the benefits provided for in clause (ii) are
not permissible after termination of employment under the terms of Triarc's
benefit plans in effect, Triarc shall pay to the Employee's estate in a
lump sum in cash within thirty (30) days after the date of termination
an amount equal to the after-tax cost of acquiring on a non-group basis,
for the remainder of the Term, those benefits lost to the Employee and/or to
the Employee's family as a result of the Employee's termination. Employee's
estate shall also be entitled to receive those death benefits to which the
Employee is entitled as of the date of the Employee's death under any
death benefit plans, policies or arrangements of Triarc.
"Bonus Amount" shall mean: the greatest of (a) the largest
Bonus paid to Employee in respect of the two Fiscal Years preceding the date of
termination minus, in the case of any Bonus being used for purposes of
calculating this clause (a) with respect to Fiscal Year 1998 or 1999, $175,000
(the "Look-Back Bonus"), (b) the Bonus which would have been paid to Employee in
respect of the Fiscal Year in which termination occurs if Triarc attained its
budgeted financial performance, and accomplished any other targeted goals for
such year, as reasonably determined by the Compensation Committee of the Board
of Directors (the "Target Bonus") or (c) the Bonus which would have been paid to
the Employee in respect of the Fiscal Year in which termination occurs based on
Triarc's actual performance, and actual accomplishment of any other targeted
goals, as reasonably determined by the Compensation Committee of the Board of
Directors (the "Actual Bonus").
"Pro-Rata Bonus" shall mean: the product of (x) the Bonus
Amount and (y) the number of days elapsed in such year proceeding the date of
termination divided by 365.
4.2. Triarc may terminate the Term of the Employee's
employment hereunder after having established Employee's Disability (pursuant to
the definition of "Disability" set forth below), by giving to Employee written
notice of its intention to terminate Employee's employment. In such a case,
Employee's employment with Triarc shall terminate effective on the 180th day
after receipt of such notice (the "Disability Effective Date"), provided that,
within 180 days after such receipt, Employee shall not have returned to full
performance of Employee's duties. For purposes of this Agreement, "Disability"
means personal injury, illness or other cause which, after the expiration of not
less than 180 days after its commencement, renders Employee unable to perform
his duties with substantially the same level of quality as immediately prior
<PAGE>
to such incident and such disability is determined to be total and permanent
by a physician selected by Triarc or its insurers and acceptable to Employee
or Employee's legal representative (such agreement as to acceptability
not to be withheld unreasonably).
Notwithstanding such termination, the Employee shall be entitled to the
following amounts:
(a) the amounts described in clauses (a) and (b) of the first
paragraph of Section 4.1, paid in a lump sum in cash within 30 days of the date
of such termination;
(b) the Pro-Rata Bonus for the Fiscal Year in which the
effective date of the termination occurs, paid in a lump sum in cash at the time
the Employee would have been entitled to receive his Bonus for such Fiscal Year;
(c) the amount described in clause (iii) of the second
sentence of the second full paragraph of Section 4.1 and to receive the
benefits, or payment in lieu of benefits, described in clause (ii) of the second
sentence and third sentence, of the second full paragraph of Section 4.1, paid
in a lump sum in cash within 30 days of the date of such termination. In
addition, to the extent permitted by any plan, the Employee shall be entitled to
receive any disability payments to which he is eligible pursuant to any plan
referred to in Section 3.4 above; and
(d) the amounts described in clauses (i) and (ii) of the first
sentence of the second full paragraph of Section 4.1 payable to the Employee at
the time or times determined by the Corporation, but in no event less rapidly
then three substantially equal installments beginning on the 30th day after the
termination of the Term under this Section 4.2.
In addition, Triarc shall pay the Employee in a lump sum in
cash within 30 days of the date of such termination, the amount of the premiums
due during the remainder of the Term (assuming no termination, but in no event
for more than two and one-half (2-1/2) years) with respect to the life insurance
policies referred to in the second sentence of Section 3.4.
4.3. This Agreement may be terminated by Triarc prior to its
scheduled termination date only for Cause (as defined below). If this Agreement
shall be lawfully terminated by Triarc for Cause during the Term, Triarc's
obligation to pay compensation or other payments hereunder or otherwise to or
for the benefit of the Employee shall cease on the effective date of such
termination; provided, however, that within 30 days of the effectiveness of such
termination, Triarc shall pay the Employee all Salary, business expenses,
amounts payable under any plan or benefit program or other amounts that were
accrued or incurred but unpaid or unreimbursed (including vacation time) at the
effective date of such termination. As used herein the term "Cause" shall mean
only (i) the willful and continued failure of Employee to perform substantially
<PAGE>
his duties with Triarc (other than any such failure resulting from Employee's
incapacity due to physical or mental illness or any such failure subsequent
to Employee being delivered a Notice of Termination (as defined in Section
12) without Cause by Triarc or Employee delivering a Notice of Termination
for Good Reason to Triarc) after a written demand for substantial performance
is delivered to Employee by the Board of Directors which specifically
identifies the manner in which the Board believes that Employee has not
substantially performed Employee's duties and Employee has failed to cure such
failure to the reasonable satisfaction of the Board, (ii) the willful
engaging by Employee in gross misconduct which results in substantial
damage to Triarc or its affiliates, or (iii) Employee's conviction (by a court
of competent jurisdiction, not subject to further appeal) of, or pleading
guilty to, a felony. For purpose of this Section 4.3, no act or failure to
act by Employee shall be considered "willful" unless done or omitted to be
done by Employee in bad faith and without reasonable belief that Employee's
action or omission was in the best interests of Triarc or its affiliates. Any
act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or based upon the advice of counsel for Triarc shall be
conclusively presumed to be done, or omitted to be done, by Employee in good
faith and in the best interests of Triarc. Cause shall not exist unless and
until Triarc has delivered to Employee, along with the Notice of Termination for
Cause, a copy of a resolution duly adopted by three-quarters (3/4) of the entire
Board (excluding Employee if Employee is a Board member) at a meeting of the
Board called and held for such purpose (after reasonable notice to Employee and
an opportunity for Employee, together with counsel, to be heard before the
Board), finding that in the good faith opinion of the Board an event set forth
in clauses (i) - (iii) above has occurred and specifying the particulars thereof
in detail. The Board must notify Employee of any event constituting Cause within
ninety (90) days following the Board's knowledge of its existence or such event
shall not constitute Cause under this Agreement.
4.4. This Agreement shall, at the option of the Employee, be
deemed to have been terminated by Triarc without Cause, following a Change in
Control (as defined herein). The term "Change in Control" shall mean:
(i) the acquisition by any person of more than 50% of
the combined voting power of the outstanding securities entitled to
vote generally in the election of directors of Triarc, followed by,
without the prior consent of the Employee, any meaningful diminution
in the Employee's duties or authority in effect immediately prior to
such acquisition;
<PAGE>
(ii) a majority of the Board of Directors of Triarc
shall be individuals who are not nominated by the Board of Directors
of Triarc, followed by, without the prior consent of the Employee,
any meaningful diminution in the Employee's duties or authority in
effect immediately prior to such nomination; or
(iii) neither Messrs. Nelson Peltz nor Peter W. May
being Chairman and Chief Executive Officer and President and Chief
Operating Officer, respectively, of Triarc.
The ownership or acquisition of any portion of the combined voting power of
Triarc by DWG Acquisition Group, L.P., Nelson Peltz or Peter W. May or by any
person affiliated with such persons shall in no event constitute a Change in
Control. The merger, consolidation or sale of assets of Triarc or any subsidiary
of Triarc with or to any corporation or entity controlled by DWG Acquisition
Group, L.P., Nelson Peltz or Peter W. May or by any person affiliated with such
persons shall in no event constitute a Change in Control.
4.5. In the event of the termination of this Agreement in
accordance with Sections 4.1, 4.2 or 4.6, (A) all non-vested stock options and
any other non-vested stock or stock-based awards (whether issued by Triarc or a
subsidiary of Triarc) then owned by the Employee shall vest immediately and in
their entirety; provided, that, in the case of options or awards granted by
Triarc Beverage Holdings Corp., this Section 4.5 shall not be operative unless
and until such vesting would not constitute a default or an event of default or
result in a mandatory prepayment requirement under the terms of any agreement
for indebtedness for borrowed money (each a "Financing Limitation"); (B) all of
the Employee's (1) stock options or other stock based awards (whether issued by
Triarc or a subsidiary of Triarc) granted to Employee on or after the Effective
Date or (2) Triarc stock options (including those previously vested) granted
before the Effective Date if the exercise price thereof is greater than the
closing price of Triarc's common stock on the New York Stock Exchange on the
Effective Date, shall remain exercisable until the earlier of (i) one year
following such termination or (ii) their respective stated expiration dates; and
(C) any restricted stock then owned by the Employee shall vest immediately.
4.6. (A) In the event of the termination of this Agreement by
Triarc without Cause (including pursuant to Section 4.4) or by the Employee for
Good Reason (as hereinafter defined), the Employee shall be entitled to receive
in a lump sum in cash within ten (10) days after the date of termination the
aggregate of the following amounts:
(a) the amounts described in clauses (a) and (b) of the first
paragraph of Section 4.1;
<PAGE>
(b) Employee's then current Salary for the remainder of the
Term (but in no event for more than two and one-half (2-1/2) years from the date
of termination; and
(c) two and one-half (2-1/2) times the Bonus Amount; provided
that for this purpose, the Bonus Amount shall be calculated using only the Look-
Back Bonus and the Target Bonus.
In addition, upon termination of the Employee in accordance
with this Section 4.6, the Employee shall: (i) be paid the Pro-Rata Bonus for
the Fiscal Year in which the effective date of the termination occurs, in a lump
sum in cash at the time the Employee would have been entitled to receive his
Bonus for such Fiscal Year; (ii) if the Actual Bonus for the Fiscal Year of
termination exceeds the Bonus Amount as determined in accordance with clause (c)
immediately above, be entitled to receive two and one-half (2-1/2) times the
amount by which the Actual Bonus exceeds such Bonus Amount in a lump sum in cash
at the time the Employee would have been entitled to receive his Bonus for such
Fiscal Year; (iii) be paid within 30 days of the date of termination, the amount
described in clause (iii) of the second sentence of the second full paragraph of
Section 4.1 and shall receive the benefits, or payment in lieu of benefits,
described in clause (ii) of the second sentence and third sentence, of the
second full paragraph of Section 4.1; and (iv) receive two and one-half (2-1/2)
additional years of age and service credit under each qualified and
non-qualified defined benefit pension plan of Triarc in which the Employee
participates at the time of termination.
In addition, Triarc shall pay the Employee in a lump sum in
cash within 30 days of the date of such termination, the amount of the premiums
due during the remainder of the Term (assuming no termination, but in no event
for more than two and one-half (2-1/2) years) with respect to the life insurance
policies referred to in the second sentence of Section 3.4.
(B) For purposes of this Agreement, "Good Reason" means:
(i) any failure by Triarc to comply with any of the
provisions of Section 3 of this Agreement;
(ii) Triarc requiring the Employee to be based at any office
or location other than that described in Section 1.3
hereof; or
(iii) any failure by Triarc to comply with and satisfy Section
7 of this Agreement by causing any successor to Triarc
to fail to expressly assume and agree to perform this
Agreement with the Employee, to the full extent set
forth in said Section 7;
<PAGE>
provided that a termination by the Employee with Good Reason shall be effective
only if, within 30 days following the delivery of a Notice of Termination (as
defined in Section 9) for Good Reason by the Employee to Triarc, Triarc has
failed to cure the circumstances giving rise to Good Reason to the reasonable
satisfaction of the Employee. For purposes of this Section 4.6, a good faith
determination made by the Employee that a "Good Reason" for termination has
occurred, and has not been adequately cured, shall be conclusive and binding.
4.7. Triarc acknowledges and agrees that the Employee shall
have no duty at any time to seek other employment or to mitigate his damages
hereunder. The amounts payable to the Employee under this Agreement shall be
paid regardless of whether the Employee obtains other employment.
4.8. Nothing in this Agreement shall prevent or limit the
Employee's continuing or future participation in any benefit, bonus, incentive
(whether cash of equity based, or otherwise) or other plan or program provided
by Triarc or any of its affiliated companies and for which the Employee may
qualify, nor shall anything herein limit or otherwise affect such rights as the
Employee may have under any stock option or other agreements with Triarc or any
of its affiliated companies. Amounts which are vested benefits or which the
Employee is otherwise entitled to receive under any plan or program of Triarc or
any of its affiliated companies at or subsequent to the date on which the
Employee's employment is terminated shall be payable in accordance with such
plan or program. Anything herein to the contrary notwithstanding, if the
Employee becomes entitled to payments pursuant to Section 4.6 hereof, the
Employee agrees to waive payments under any severance plan or program of Triarc.
5. Inventions
The Employee agrees that all processes, technologies, designs
and inventions (but excluding any matters relating to limited liability
companies or limited liability partnerships) ("Inventions"), including new
contributions, improvements, ideas and discoveries, whether patentable or not,
conceived, developed, invented or made by him during the Term of this Agreement
shall belong to Triarc, provided that such Inventions grew out of the Employee's
work for Triarc, are related in any manner to the business (commercial or
experimental) of Triarc or are conceived or made on Triarc's time or with the
use of Triarc's facilities or materials. The Employee shall further: (a)
promptly disclose such Inventions to Triarc; (b) assign to Triarc, without
additional compensation, all patent and other rights to such Inventions for the
United States and foreign countries; (c) sign all papers necessary to carry out
the foregoing; and (d) give testimony in support of the status of the Employee
as the inventor of such inventions. The Employee agrees that he will not assert
any rights to any Invention as having been made or acquired by him prior to the
date of this Agreement, except for Inventions, if any, disclosed to Triarc in
writing prior to the date hereof.
<PAGE>
6. Confidentiality
In order to maintain the fullest degree of confidentiality
with respect to the business and operations of Triarc:
6.1. The Employee shall be required to accept and fully comply
with all security and communications requirements imposed by Triarc. All
equipment and facilities that Triarc determines to be necessary or appropriate
for fulfilling such communications and security requirements shall be provided
to the Employee at Triarc's expense. Except as otherwise provided herein, such
equipment and facilities shall be returned to Triarc, as is (other than normal
wear and tear), upon the termination of this Agreement.
6.2. The Employee agrees that all memoranda, notes, records or
other documents made or compiled by the Employee in the fulfillment of his
obligations under this Agreement or otherwise made available to him concerning
any process, apparatus, service, or product manufactured, used, developed,
investigated or seriously considered by Triarc shall be Triarc's property and
shall be delivered to Triarc on the termination of this Agreement or at any
other time on Triarc's request. The Employee shall not knowingly use, for
himself or others, or divulge to others, other than in the ordinary course of
Triarc's business, any secret or confidential information, knowledge or data of
Triarc (including, without limitation, names of customers of Triarc) obtained by
him as a result of his performance of this Agreement, unless authorized by
Triarc.
7. Assignment
This Agreement is binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns.
Notwithstanding the foregoing, neither party shall assign or transfer any rights
or obligations hereunder, except that, subject to Section 4.4 hereof, Triarc may
assign or transfer this Agreement to a successor partnership, limited liability
company, or corporation in the event of a merger, consolidation, or transfer or
sale of all or substantially all of the assets of Triarc, provided that Triarc
shall require any successor to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that Triarc would be
required to perform if no such succession had taken place. As used in this
Agreement, "Triarc" means Triarc, as hereinbefore defined and any successor to
its business and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law or otherwise. Any purported assignment, other than
as provided above, shall be null and void.
<PAGE>
8. Indemnification; Legal Fees
Triarc will indemnify the employee, to the maximum extent
permitted by applicable law, against all costs, charges and expenses incurred or
sustained by him in connection with any action, suit or proceeding to which he
may be made a party by reason of his being an officer, director or employee of
Triarc or of any subsidiary or affiliate of Triarc. Triarc shall pay directly
the fees and expenses of counsel and other experts incurred in connection with
the enforcement of this Agreement, as they may be incurred, provided that the
Employee shall be required to reimburse Triarc for any amounts so paid unless at
least one material matter in dispute is decided in favor of Employee.
9. Notices
A. Any termination by Triarc with or without Cause or by the
Employee with or without Good Reason or following a Change in Control shall be
communicated by Notice of Termination to the other party hereto given in
accordance with this Section 9. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of the
Employee's employment under the provision so indicated and (iii) if the
termination date is other than the date of receipt of such notice specifies the
proposed termination date.
B. All notices, requests, consents and other communications,
required or permitted to be given hereunder, shall be in writing and shall be
delivered personally or sent by facsimile transmission, overnight courier or
mailed, first-class, postage prepaid, by registered or certified mail, as
follows:
if to Triarc:
280 Park Avenue
New York, NY 10017
Attention: President
Fax: 212-451-3024
if to the Employee:
Brian L. Schorr
21 East 87th Street
New York, NY 10128
Fax: 212-722-1825
<PAGE>
or to such other address as either party shall designate by notice in writing to
the other in accordance herewith. Any such notice shall be deemed given when so
delivered personally, by facsimile transmission (when the answer-back is
received), or if sent by overnight courier, one day after delivery to such
courier by the sender or if mailed, five days after deposit by the sender in the
U.S. mails.
10. Waiver
No waiver of any provision of this Agreement or modification
or amendment of the same shall be effective, binding or enforceable unless in
writing and signed by the party to be charged therewith.
11. Governing Law
This Agreement shall be governed by and administered in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely within such State.
12. Certain Additional Payments by Triarc. (A) If it is determined
(as hereafter provided) that any payment or distribution by Triarc to or for the
benefit of the Employee, whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise pursuant to or by reason of
any other agreement, policy, plan, program or arrangement, including without
limitation any stock option, stock appreciation right or similar right, or the
lapse or termination of any restriction on or the vesting or exercisability of
any of the foregoing (a "Payment"), would be subject to the excise tax imposed
by Section 4999 of the Code (or any successor provision thereto) or to any
similar tax imposed by state or local law, or any interest or penalties with
respect to such excise tax (such tax or taxes, together with any such interest
and penalties, are hereafter collectively referred to as the "Excise Tax"), then
the Employee will be entitled to receive an additional payment or payments (a
"Gross-Up Payment") in an amount such that, after payment by the Employee of all
taxes (including any interest or penalties imposed with respect to such taxes),
including any Excise Tax, imposed upon the Gross-Up Payment, the Employee
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments.
(B) Subject to the provisions of Section 12(F) hereof, all
determinations required to be made under this Section 12, including whether an
Excise Tax is payable by the Employee and the amount of such Excise Tax and
whether a Gross-Up Payment is required and the amount of such Gross-Up Payment,
will be made by a nationally recognized firm of certified public accountants
(the "Accounting Firm") selected by the Employee in his sole discretion. The
Employee will direct the Accounting Firm to submit its determination and
detailed supporting calculations to both Triarc and the Employee within 15
calendar days after the date of the Change in Control or the date of the
Employee's termination of employment, if applicable, and any other such time
<PAGE>
or times as may be requested by Triarc or the Employee. If the Accounting Firm
determines that any Excise Tax is payable by the Employee, Triarc will pay the
required Gross-Up Payment to the Employee within five business days after
receipt of such determination and calculations. If the Accounting Firm
determines that no Excise Tax is payable by the Employee, it will, at the same
time as it makes such determination, furnish the Employee with an opinion
that he has substantial authority not to report any Excise Tax on his federal,
state, local income or other tax return. Any determination by the Accounting
Firm as to the amount of the Gross-Up Payment will be binding upon Triarc and
the Employee. As a result of the uncertainty in the application of Section
4999 of the Code (or any successor provision thereto) and the possibility
of similar uncertainty regarding applicable state or local tax law at the
time of any determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by Triarc should
have been made (an "Underpayment"), consistent with the calculations required to
be made hereunder. In the event that Triarc exhausts or fails to pursue its
remedies pursuant to Section 12(F) hereof and the Employee thereafter is
required to make a payment of any Excise Tax, the Employee will direct the
Accounting Firm to determine the amount of the Underpayment that has occurred
and to submit its determination and detailed supporting calculations to both
Triarc and the Employee as promptly as possible. Any such Underpayment will be
promptly paid by Triarc to, or for the benefit of, the Employee within five
business days after receipt of such determination and calculations.
(C) Triarc and the Employee will each provide the Accounting
Firm access to and copies of any books, records and documents in the possession
of Triarc or the Employee, as the case may be, reasonably requested by the
Accounting Firm, and otherwise cooperate with the Accounting Firm in connection
with the preparation and issuance of the determination contemplated by Section
12(B) hereof.
(D) The federal, state and local income or other tax returns
filed by the Employee will be prepared and filed on a consistent basis with the
determination of the Accounting Firm with respect to the Excise Tax payable by
the Employee. The Employee will make proper payment of the amount of any Excise
Tax, and at the request of Triarc, provide to Triarc true and correct copies
(with any amendments) of his federal income tax return as filed with the
Internal Revenue Service and corresponding state and local tax returns, if
relevant, as filed with the applicable taxing authority, and such other
documents reasonably requested by Triarc, evidencing such payment. If prior to
the filing of the Employee's federal income tax return, or corresponding state
or local tax return, if relevant, the Accounting Firm determines that the amount
of the Gross-Up Payment should be reduced, the Employee will within five
business days pay to Triarc the amount of such reduction.
<PAGE>
(E) The fees and expenses of the Accounting Firm for its
services in connection with the determinations and calculations contemplated by
Sections 12(B) and (D) hereof will be borne by Triarc. If such fees and expenses
are initially advanced by the Employee, Triarc will reimburse the Employee the
full amount of such fees and expenses within five business days after receipt
from the Employee of a statement therefor and reasonable evidence of his payment
thereof.
(F) The Employee will notify Triarc in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
Triarc of a Gross-Up Payment. Such notification will be given as promptly as
practicable but no later than 10 business days after the Employee actually
receives notice of such claim and the Employee will further apprise Triarc of
the nature of such claim and the date on which such claim is requested to be
paid (in each case, to the extent known by the Employee). The Employee will not
pay such claim prior to the earlier of (i) the expiration of the 30-calendar-day
period following the date on which he gives such notice to Triarc and (ii) the
date that any payment of amount with respect to such claim is due. If Triarc
notifies the Employee in writing prior to the expiration of such period that it
desires to contest such claim, the Employee will:
(vi) provide Triarc with any written records or documents in his
possession relating to such claim reasonably requested by
Triarc;
(vii) take such action in connection with contesting such claim as
Triarc will reasonably request in writing from time to time,
including without limitation accepting legal representation
with respect to such claim by an attorney competent in respect
of the subject matter and reasonably selected by Triarc;
(viii)cooperate with Triarc in good faith in order effectively to
contest such claim; and
(ix) permit Triarc to participate in any proceedings relating to
such claim; provided, however, that Triarc will bear and pay
directly all costs and expenses (including interest and
penalties) incurred in connection with such contest and will
indemnify and hold harmless the Employee, on an after-tax
basis, for and against any Excise Tax or income tax, including
interest and penalties with respect thereto, imposed as a
result of such representation and payment of costs and
expenses. Without limiting the foregoing provisions of this
Section 12(F), Triarc will control all proceedings taken in
connection with the contest of any claim contemplated by this
Section 12(F) and, at its sole option, may pursue or forego
any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim
(provided that the Employee may participate therein at his own
cost and expense) and may, at its option, either direct the
Employee to
<PAGE>
pay the tax claimed and sue for a refund or contest the claim
in any permissible manner, and the Employee agrees to
prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction
and in one or more appellate courts, as Triarc will determine;
provided, however, that if Triarc directs the Employee to pay
the tax claimed and sue for a refund, Triarc will advance the
amount of such payment to the Employee on an interest-free
basis and will indemnify and hold the Employee harmless, on an
after-tax basis, from any Excise Tax or income tax, including
interest or penalties with respect thereto, imposed with
respect to such advance; and provided further, however, that
any extension of the statute of limitations relating to
payment of taxes for the taxable year of the Employee with
respect to which the contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, Triarc's
control of any such contested claim will be limited to issues
with respect to which a Gross-Up Payment would be payable
hereunder and the Employee will be entitled to settle or
contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(G) If, after the receipt by the Employee of an amount
advanced by Triarc pursuant to Section 12(F) hereof, the Employee receives any
refund with respect to such claim, the Employee will (subject to Triarc's
complying with the requirements of Section 12(F) hereof) promptly pay to Triarc
the amount of such refund (together with any interest paid or credited thereon
after any taxes applicable thereto). If, after the receipt by the Employee of an
amount advanced by Triarc pursuant to Section 12(F) hereof, a determination is
made that the Employee will not be entitled to any refund with respect to such
claim and Triarc does not notify the Employee in writing of its intent to
contest such denial or refund prior to the expiration of 30 calendar days after
such determination, then such advance will be forgiven and will not be required
to be repaid and the amount of such advance will offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid pursuant to this Section 12.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
TRIARC COMPANIES, INC.
By: PETER W. MAY
-----------------------
Name: Peter W. May
Title: President
BRIAN L. SCHORR
----------------------------
Brian L. Schorr
<PAGE>
